minicounsel

COURT FILE NO.: FC-17-1670

DATE: 2020/02/10

BETWEEN:

R. M. (R. Mother)

Applicant

– and –

C. S. A. M. (S.M. Father)

Respondent

Odette Rwigamba, Counsel for the Applicant

Alison Southern, Counsel for the Respondent

HEARD: February 3 -7, 2020

Justice Engelking

1This is a very sad case about two young girls, E. who is 14 years of age, and S., who is turning six this month. R. is E. and S.’s mother; S.M. is their father.

2R. and S. M. began living together in 1998; they married in 2007 and separated in May of 2016. R. brought an application for orders of custody of and access to the girls, along with other claims for relief, which have all been resolved by the parties. The outstanding issues which have required a trial in this matter are parenting time and decision making, and what R.’s income is or should be for support purposes.

3R. seeks an order of sole custody to her with specified parenting time to S.M., though in her application she sought access to S.M. at her sole discretion. S.M. seeks an order placing the children in his sole custody for a period of six months with no access to R., following which the parties would be required to comply with the recommendations of their reunification counsellor, Victoria Hasbani. He also seeks to have income imputed to R. at $55,000 per year commencing in August of 2019.

Background Facts

4As was indicated above, the parties were in a relationship for approximately 18 years. Two children were born of the relationship, E. W. F. M. on […], 2005 and S. M. B. M. on […], 2014. R. also had a child from a previous relationship, A. A. J. M., born […], 1996, whom S.M. adopted in 2008. A. A.J.M. is now an independent adult and is not part of these proceedings.

5Prior to the breakdown of the relationship, in July of 2014, E. reported having been sexually touched by a female cousin a couple of years older than her while at a sleepover at her paternal grandparents. R. took E. to CHEO to be assessed and CHEO reported it to the Children’s Aid Society of Ottawa. CASO investigated the incident, did not verify it and closed their file. E. ceased to have any contact with S.M.’s family members as a result of this incident, though R. and S.M. have different versions of why that is so. R.’s is that S.M.’s family have rejected E. and did not want contact with her. S.M.’s is that R. did not want E. to have contact with his family members and did not permit it subsequent to the incident.

6S.M. left the family home on May 6, 2016. R. remained in the matrimonial home with the children. S.M. visited with E. and S. on two or three occasions at the matrimonial home in May and June of 2016. On July 16, 2016, S.M. attended the home accompanied by the police to retrieve his belongings.

7In August, S.M. contacted E. in the hopes of visiting with her and celebrating her birthday. By text message, E., who was then turning 10, advised S.M. that she did not want to see him. According to his testimony, S.M. had the impression from that interaction with E. that “they just didn’t want me around”.

8R. testified that she engaged a lawyer in August of 2016 to commence discussions with S. M. on the issues existing between the two of them. S.M. also indicated that he had retained a lawyer around that time. R. was being represented by a Mr. John Sloan and S.M. was being represented by Mr. Darren Clayton, though it is actually unclear when either retainer began, as the first correspondence I was directed to was dated February 7, 2017.¹ In any event, some discussions began. S.M. was not exercising access to E. and S. during the period of August 2016 to April of 2017, while these discussions appeared to be on-going. However, it is clear that a proposal regarding S.M.’s access to the children had been made by Mr. Clayton’s office as in his February 7, 2017 email to Mr. Clayton’s articling student, Ms. Marguerite Wilson, Mr. Sloan indicated: “With respect to the issue of access I have discussed the matter with my client and given the length of time since your client has seen the children she would like to discuss the proposed access arrangements with the children and reply to me on this issue. I will advise you upon receipt of my client’s instructions on this issue.” E. would have been ten at the time, and S. would have been almost three.

9Nothing came of the communications between Mr. Sloan and Mr. Clayton’s office, and certainly no access was agreed to by R. In August of 2017, R. filed her Application with the court. She testified that it took some time to serve S.M., though she did not say why that was the case, given that she knew he went to live with his parents in Renfrew at separation. S.M. was eventually served, and he filed an Answer dated March 8, 2018. No access was being exercised with the children by S.M. between April of 2017 and March of 2018. In his original Answer, S.M. was seeking an order of joint custody of the children and access to them on alternating weekends. At this time, S.M. was represented by Ms. Stacey Coulterman and R. was being represented by her present lawyer, Ms. Odette Rwigamba. On February 1, 2018, Ms. Coulterman wrote a letter to Ms. Rwigamba in which she stated: “I understand that at this time R. M. is preventing my client from exercising any access with the children and such actions are completely unacceptable.”² Ms. Coulterman wrote to Ms. Rwigamba again on February 6, 2018 requesting a response to her February 1, 2018 letter “as we would like to have access begin immediately with the children along with scheduled communications.”³ On February 9, 2018, Ms. Rwigamba wrote to Ms. Coulterman disputing that R. was denying access to the children to S.M. In her letter, she stated: “…please provide us with your client [sic] requests for access that he had made since the date of separation, or since September 2016.” R.’s position at that time was that there should be no access prior to E. receiving counselling.

10The parties appeared before me for a case conference on April 4, 2018. No access was agreed to by R. prior to that date. On April 4, 2018, the parties entered into Minutes of Settlement on a temporary without prejudice basis, which were incorporated into an order, providing for S.M. to commence having access with the children for one hour on Sundays from April 8 to April 29, 2018, to be increased thereafter to two hours each for another four weeks if all went well. Access was to take place at the Kanata Public Library. The Minutes provided for a review of access at the end of May to see if it should be “increased or decreased in accordance with the children’s best interests.” They also contained a provision that S.M. was to attend access alone and to not bring any of his family members. S.M. was to sign the necessary consent for E. to obtain counselling, but a provision was added to the Minutes that provided that: “Once the counsellor for the family or the children is identified by Homewood Health, the Applicant shall sign any necessary consent to permit the Respondent to have contact with the counsellor.”⁴

11The first visit occurred on Sunday, April 8, 2018. According to S.M., it went well. They met at the library; the children were a bit distant at first but warmed up as the visit went on. They looked at books and had snacks together. All in all, S.M. thought it was a good visit.

12The next visit was scheduled for Sunday, April 15, 2018. R. brought the children for the visit, but E. almost immediately indicated that she did not want to stay. She handed a type-written letter to S.M. and stated that she wanted him to answer her questions, in his words, right away. S.M. testified that he put the letter in his pocket and told E. he would look at it later and get back to her as it was time for them to visit. E. left the visit, and S. followed her lead. The “visit” lasted only a few minutes.

13The letter which E. handed to S.M. is significant and for that reason, I reproduce it in its entirety as follows:

Please answer these questions 100% truthfully because i would like straight answers, and i have a right to know.

Why did you mess up our family’s relationship by cheating and lying to us.
Why did you not bother with us for the past 2 years because mommy did no [sic] stop you from seeing us. And why do you want to be involved in our lives now
Why didn’t you and still don’t believe or protect me as a father should knowing what happen [sic] to me when i was 8 years old being sexual assulted [sic].
Why don’t you ask to see us (me and S.) when you brought the police to come and get your tools and personal stuff.
Why did you bring k. & g. when you brought the police to our house when you know i didn’t want to see them or your family ever again after what happened to me when i was 8. you and mommy promised that i would never have to see them again (your family) after i was sexual assulted [sic].
Why when you were here you weren’t really here with us at all and you did what you want you wanted to do instead of what was important and spending time with us and being a family. Since you left us we have not missed us so why bother us now were happy without you around
Why are you lying to the courts about mommy and not signing the paper so i can get counselling for 2 years now when it took a judge to make you sign the paper so i could get counselling it’s not about you its about me getting the help that i need.
Why are you stating that i have a developmental disorder when knowing I don’t it’s called a learning disorder because i know right from wrong
Why are you forcing us to see you when we don’t want to see you ever again because you have not been there for the pst 2 years or really when you were with us, now we’re happy just with mommy because she has never let us down (me and shelbey) like you have.
These question [sic] im asking you are 100% from me E. W. F. M. i do not want answers like (i don’t know, or mommy knows).

No one else has anything to do with these questions or influenced me to ask, but im asking you to be 100% truthful with your answers

I would like the answers to theses questions by next sunday april 22, 2018 signed by you S. M. after you have answered my questions.

By: E. M. (signature included)⁵

14Ms. Coulterman wrote to Ms. Rwigamba following this visit advising her of R.’s interference with access in permitting E. to make the decision not to stay. She also provided Ms. Rwigamba with a copy of the above-noted letter, noting its impropriety and requesting that she advise R. not to expose the children to the ongoing litigation.⁶ The following visit was on Sunday, April 22, 2018. On April 27, 2018, Ms. Coulterman wrote another letter to Ms. Rwigamba in which she advised of the following: “Again, your client brought the children to the library but refused to leave them there with S. M., insisting that he answer the attached typed letter in writing. S. M., as advised by counsel, offered to speak with E. about the contents in the library but was advised by R. M. that she also has a right to know.”⁷ Ms. Coulterman’s letter also noted the upcoming Sunday to be that at which access was to increase according to the April 4, 2018 endorsement and Minutes of Settlement. For reasons unexplained by R., it did not increase.

15Access continued for one hour every Sunday at the library between April 8 and June 17, 2018, often exercised briefly because of E.’s resistance. E. commenced counselling with Ms. Leahanne Prolas in May of 2018, Ms. Rwigamba advised Ms. Coulterman by letter dated May 25, 2018, that Ms. Prolas was prepared to have a session together with S.M. and E., which appointment was scheduled for May 31, 2018. Ms. Prolas did meet with them on that date, and she later reported to the OCL who conducted an assessment in this matter, Ms. Janet Claridge, that the visit was positive, and a further session together was planned. According to Ms. Prolas, at the next session, E. came in with R. and said “no” to anymore joint meetings with S. M. This is notwithstanding that Ms. Rwigamba wrote to Ms. Coulterman on June 9, 2018 stating that the counsellor was willing to continue working with them “and my client is willing to support that.”⁸ Despite this clear evidence to the contrary, R. testified that she was “not aware of a plan for him to attend another appointment with her”.

16S. M. reported that there were a couple of visits in June where he brought a frisbee, a ball and snacks, and they went relatively well as they were able to exercise them outside of the library.

17A further case conference was held, also before me, on June 13, 2018. On that date, the parties agreed to a referral to the OCL to provide a clinical investigation. They also agreed for access to continue to take place for minimum of one hour on Sundays, but to increase over two weeks to an hour and a half and to two hours after four weeks if all went well. The access exchange was to be via the supervised access exchange at Family Services Ottawa (“FSO”), if available, and at a mutually agreed upon convenient location, if it was not.⁹

18The supervised exchange at FSO was not available for visits of such a short duration on Sundays. The library remained the exchange location. However, the library closed for the summer months at the end of the school year. The last visit before the closure in 2018 was on June 17. No arrangements appear to have been made by the parties for a change of location of the visits, and access faltered again. S. M. ceased seeing the children at that time. Even when the library reopened on Sundays at the start of the new school year in September of 2018, S. M. did not resume visiting with them. Although R. insisted that she was willing for that to happen, and that S. M. was at fault, she did not provide the court with any evidence that S. M. was informed that she was prepared to recommence access on Sundays in September. Hence, no access took place between June 17 and December 13, 2018.

19Ms. Claridge was appointed to conduct the clinical investigation on behalf of the Office of the Children’s Lawyer in the fall of 2018. As part of her work, Ms. Claridge arranged for an “introductory meeting” to be conducted with her, S. M. and the children at her office on December 13, 2018. Ms. Claridge described that visit, in both her report dated March 1, 2019,¹⁰ and her testimony to be a very positive one. In her report, Ms. Claridge noted at page 13:

In summary the visit between S. M. and the girls went well. S. M. was appropriate with E. and S. He reassured them he loved and missed them. He assured them he did not want to take them away from their mother or her family. Although E. challenged the idea of visit, she softened by the end, talked with her father about school, and giving her father high-fives. S. was chatty, drew pictures with hearts for S. M., and gave him a hug, stating she loved him also.

20In her testimony, Ms. Claridge stated that the December 13, 2018 visit went well. She noted that S. M. apologized to the girls, was appropriate and did not disparage R. She said that S. hugged and said “I love you too” to S. M., and that both girls nodded agreeably to another visit. Ms. Claridge testified that while R. brought the children to her office for the visit, she did not appear to be happy about it. Ms. Claridge had asked S. M. to talk to R. to reassure her about his intentions. He did so and apologized for past wrongs; R. did not accept his apology. R. did not say anything directly to the children, except to remark disapprovingly that they would be on a sugar high from the snacks S. M. brought.

21A next visit was contemplated for the second week of the children’s Christmas Break, however, due to both S. M.’s work schedule during the week and R.’s work schedule on the weekends, an observation visit with S. M. could not be arranged until January 27, 2019.

22In the interim, S. M. has brought a motion for increased access. On January 8, 2019, Justice O’Bonsawin made an order on consent of the parties that provided for the current access order (so that of June 13, 2018) to remain valid until the OCL provided her report. R. was to drop the children at the library on Sundays at 1:30 and pick them up there at 2:30. She was to “leave while the children are in the care of the Respondent”, and access was to occur in the vicinity of the Kanata Public Library.¹¹

23Ms. Claridge conducted her observation visit with S. M. and the children on January 27, 2019. Contrary to Justice O’Bonsawin’s order, R. did not leave the children in the care of S. M. at the library. To appreciate the full flavour of the visit, it is necessary that I reproduce the portion of Ms. Claridge’s report describing the interaction from the time R. and the children arrived:

S. M. and this clinician met R. M. at the front doors of the library. S. M. stood quietly to the side. R. M. said, “The girls don’t want to come in and see S. M.…. They said S. M. would just continue to lie to them…My lawyer said I only have to bring them to the library, I don’t have to make them come in.” This clinician advised R. M. that the girls needed to come in and speak with the clinician, at the least. After much resistance, R. M. went out to the care to get the girls, and S. M. went to sit at the table with his things.

When R. M. brought the girls back in, they were taken to a different area of the library with R. M. in tow. E. said, “I don’t have to see him and I don’t have to tell you why”. E. was advised that her parents had agreed to this visit at court. S. was confused. She asked this clinician how the clinician knew her “dad”? S. was reminded that we had met at the clinician’s office. S. said, “but how do you know my dad Shaun? Have you met my dad Shaun?” It was explained that this clinician had talked with Mr. Summers, but that were at the library for the children to have a visit with their father S. M. Miller. S. was asked if she wanted to say hello to father S. M.? S. stood up and this clinician held out her hand to S., R. M. yelled out, “you don’t have to drag her over there!”

S. went with the clinician to where her father was waiting. S. took off her coat and started chatting with S. M., R. M. and E. followed behind and stood behind where S. was sitting with her father. S. M. told both girls that he loved and missed them. He offered S. her Christmas gift and chatted with her about what was in the bag; my little ponies, puzzles, and hairpieces. R. M. stood by commenting loudly, “S. is only staying because you are giving her gifts…E. you need to speak up and tell them you don’t want to be here and why, because they think it is my fault…S. M. is acting like E. is invisible and she isn’t even here”. S. M. offered E. her gifts and asked if she wanted to sit down with him: E. took the gift but said nothing. He repeated that he loves the girls and missed them. He said he wasn’t there to take them away from their mother. He offered E. to sit and have a snack. E. refused. S. said she was confused why E. was upset. S. asked her mother if she could open the little ponies, and R. M. said, “no, open them at home”. The clinician suggested that since they were S. ’s gift, S. could open them here or at home. S. and her father opened the package and combed the hair of the pony. S. asked if her mother and E. wanted to have a snack, as they continued to stand behind S. and R. M. continued to complain loudly. S. M. said they were more than welcome to sit down and have a snack. He said he would also allow them to take the snacks home. This clinician suggested R. M. and E. wait at a different section of the library until S. ’s visit was over. R. M. and E. moved back about 6 feet, but still stood, scrutinizing the visit.

S. M. and S. started to explore the library and looking at different books. S. chatted easily the whole time. She would come back to the table and have a strawberry or drink and she and her father would read part of the books [sic]. At one-point S. started whispering to her father. She was asked why she was whispering and S. said, “Because we are in the library”. S. and her father found some puzzles and Lego to work on. They would high-five each other when a task was completed.

Near the end of the visit, R. M. sent E. over. E. came over and stood behind S. and said, “S. it is time to go now”. S. picked up another book and offered it to her father to read, as S. wasn’t ready to go. E. came over again and said they had to go. S. gave her father a hug as he helped her into her coat. He told the children again that he loved and missed them.¹²

24Further in the report, in summarizing the visit, Ms. Claridge wrote:

In conclusion, the visit was challenging due to R. M.’s intrusive and defiant behaviour. R. M. did not bring the children into the library without coaxing, stating her lawyer said she didn’t have to. She kept repeating that both girls did not want to see their father. When the girls came in, E. repeated that she didn’t want to see her father, but she gave no valid reason. S., out of curiosity, did see S. M. She was amicable and chatty with S. M. but uncomfortable with R. M. and E. standing behind her as R. M. complained the whole time, telling E. to speak up. R. M. used E. to be her spokesperson, sending E. on two occasions to terminate the visit. R. M. was intrusive to the visit S. was having with her father.¹³

25In her testimony, Ms. Claridge described the visit as a very tense one, noting that R. was not cooperative and did not want it to happen. She described R. making E. the spokesperson to make the visit end and E. having to “bear the burden of that”. She said while S. participated in visit, she was clearly confused by her mother and sister’s hostility.

26As I have indicated, Ms. Claridge’s report was released on March 1, 2019. Ms. Claridge made the following recommendations at page 18 of the report:

It is recommended that the parties follow the Court Order as outlined by Justice Engelking in April 2018, as a starting point.
Because R. M. continues to interfere and sabotage the visits, it is recommended that a third neutral party assist with the exchange and supervise the initial visits, until the exchanges can happen without conflict and the visits can happen.
It is also recommended that the parties consider a neutral location for the exchange, such as pick-up at the school.
It is recommended that the whole family system be involved with a skilled reunification counsellor, that: allows E. to have her own voice; work with R. M. around her fears; work with S.M. and R. M. together on past hurts and issues; and work toward a healthy relationship between the girls and their father.
It is recommended that neither parent speak or allow negative talk about the other parent to occur around the children, and that both parents speak positively about the other parent.
The library has its limitations and the visits, once established, should be open to different locations within the community: museums, restaurants, Fun Haven, shopping, special events. The library could be used as the exchange point.
There is no evidence to suggest the paternal family would place the children at risk, and once the visits are established, the children should have contact with this part of their family.

27Between February and June of 2019, access continued for one hour on Sundays with varying degrees of success. R. stated that her own father and Mr. Summers were doing the access exchanges over this period, as the “third neutral party” recommended by Ms. Claridge. S. M. testified that he did not consider either of them neutral, but that some of his best visits with the girls nevertheless occurred when R.’s father, Ron Perrin, was doing the exchanges. He described Mr. Perrin as telling the girls to “go and have fun with their father” when he dropped them off, and the girls generally did. When Mr. Summers did the exchanges, E. frequently refused to follow through with the visits. When asked, Ms. Claridge agreed that she would not see Mr. Perrin or Mr. Summers as neural third parties in this situation, and that her reference to neutral was someplace like school or the access exchange at FSO.

28In April of 2019, R. provided the names of several potential reunification counsellors to S. M. through their respective counsel. She also informed S. M. on April 26, 2019 that E. would be seeing a new personal counsellor, Stacey Kirkpatrick. R. neither consulted with S. M. about which counsellor to retain nor sought his consent. She simply advised him that E. would begin seeing Ms. Kirkpatrick the first week of May. R. had unilaterally terminated the services of Ms. Prolas, the counsellor E. had been seeing since sometime in 2018. R.’s evidence was that she understood Ms. Claridge’s fourth recommendation to mean that E. required her own independent counsellor who had spoken with neither parent to “have her own voice”. S. M.’s evidence was that he believed that R. unilaterally changed E.’s counsellor because she did not like what Ms. Prolas had reported to Ms. Claridge during the latter’s investigation, which was:

that R. was reluctant to permit E. to attend sessions on her own and was in each session with her;
that she often spoke for E.;
that she spoke openly in front of E. about her concerns about S. M., including that “he never wanted to spend time with the children and that he didn’t protect the children”;
that her impression was that E. was worried about her mother;
that R. was influential over E.’s position; and,
that R. was disappointed that she was not more supportive of R.’s “position of no contact between E. and her father”.

29When Ms. Claridge was asked about this, she clarified that her recommendation was not that E. have her own individual counsellor, but that the reunification counsellor chosen by the family would be able to ensure E. had her own voice by working with the parents and distancing her from the narrative she has been hearing for the last four years such that she would gain a voice that is independent of her mother’s.

30With respect to the issue of counselling for E., Ms. Claridge was of the view that counselling was likely not required for E. because “there is nothing wrong with E.”. Indeed, Ms. Claridge’s position was that having E. in counselling may only serve to reinforce to E. that she is the one with the problem. According to Ms. Claridge, the problem in this family is that R. does not support S. M. having a role in the children’s lives. She testified that R. is telling the children things that are not the truth, such as that S. M. didn’t want to see them, that he is mean and that he lies. Ms. Claridge testified that E. needs to receive information from her mother that it’s her responsibility to make decisions, not E.’s and that R. needs to apologize for putting that responsibility on the child. R. needs to reinforce that it is not E.’s choice to say no anymore. Ms. Claridge stated that work needs to be done with R. about why she is putting up the barriers that she is to the children having a relationship with S. M. and his family members, whom she saw as presenting no risk to the children at all. Ms. Claridge speculated that R. may be concerned that a story different than the one she has been telling will be presented to children. She stated that counselling for E. is likely of no use, without R. taking responsibility and apologising for her role in creating the barriers. Ms. Claridge felt that E ’s voice has never been independent of R., and failing R. doing what is required of her, it never will be.

31At the end of June, the Kanata Public Library was again closing for the summer. R. appeared to be tied to the library, although there was no requirement in the June 2018 court order that access take place there. Rather than propose another location at which the access exchange could occur, R. proposed that S. M.’s access change from Sundays for one hour to Saturdays for one hour.¹⁴ S. M. simply wanted an alternate exchange location and to be free to exercise his access where he wished. In response to R.’s suggestion, S. M. counsel, now Ms. Alison Southern, wrote on June 26, 2019: “There is no reason why the visits have to remain at the library. My client should be free to go elsewhere with the children. Exchanges can happen at the library, but visits should not have to take place there. Kindly confirm your client’s agreement with this.”¹⁵ On July 3, 2019, R. did agree for the exchanges only to take place at the library.¹⁶ At some point, the children, prompted by E., just began walking home from the library shortly after access commenced, followed by S. M. to ensure they arrived safely. The exchange was changed to the Kanata Centrum shopping mall as it was further from home, buy E. continued to instigate walking home.

32In the meantime, S. M. again brought a motion to increase his access to the girls, which was heard by Justice MacEachern on July 30, 2019. On August 2, 2019, Justice MacEachern released her endorsement on the motion. In it, Justice MacEachern stated at paragraph 7 that:

…the list of questions [in the letter E. gave to S. M. on April 15, 2018] is very concerning to the Court and supports the conclusion that R. M. is influencing E. in a manner that is contrary to E.’s best interests. By June of 2018, even these minimal access visits were not taking place. They did not restart until January of 2019, and have continued to be difficult, primarily due to E.’ resistance to visits and R. M.’s negative interference.¹⁷

33Justice MacEachern found further at paragraph 15 that: “There is significant evidence in support of S. M.’s allegations that R. M. is interfering with his access and influencing the children against him.”¹⁸ Finally, Justice MacEachern found that “R. M. lacks insight regarding the consequences of her conduct, or she is lying.”¹⁹

34Justice MacEachern ordered that S. M. have access to S. every Wednesday, from after school (being approximately 3 or 3:30 p.m.) to 6:30 p.m., with him being responsible for picking her up from school and dropping her at the exchange location at Kelsey’s parking lot at Kanata Centrum. She also ordered that the Sunday visits continue with both children for a period of three hours, to increase for longer periods if access improves, with the exchange being a Kelsey’s parking lot. Justice MacEachern also ordered that E. immediately return to counselling with Ms. Prolas, if the latter was available to take her, and for the parties to, on consent, retain a reunification counsellor to engage in reunification counselling between the children and S. M., with R. participating, if necessary. Paragraph 31, iv. Provided that: “The parties shall comply with the recommendations made by the reunification counsellor” and paragraph 31, vii. provided: “The children may be picked up from school by S. M. for his scheduled parenting time. Otherwise, whenever they are not in school, pick-ups and drop-offs shall occur at the Kelsey’s parking lot at Kanata Centrum.”²⁰

35Although S. M. wanted to commence exercising access to S. on Wednesdays upon the release of Justice MacEachern’s endorsement, R. took the position then and at trial that access to S. was only to commence once S. was in school as the pick-up of her by S. M. was to be done at school. With respect to the Sunday access, R. also took the position that access was to be exercised to both girls, so when E. refused to participate, R. did not permit S. to remain with S. M., “because of the court order”.

36Although S.’s school did not appear to be aware of it when he contacted them on September 10, 2019,²¹ R. had advised them on September 6, 2019 that S. M. would be picking up S. on Wednesdays.²² Visits with S. on Wednesdays did commence on September 11, 2019 and have gone very well when they have occurred. Some have been missed when S. was absent from school, due to illness according to R. A review of S.’s attendance record from John Young Elementary School demonstrates that she was absent on the following Wednesdays: September 18, October 16, November 13 in the a.m. and late in the p.m., and December 11. R. testified that she provided make-up visits for those missed, but it was unclear to me if that was consistently done. There, additionally, was a problem on December 4 when there was a strike action at S.’s school. S. M. sent R. an email requesting to change the visit to Thursday and R. instead attended the Kelsey’s parking lot at Kanata Centrum on Wednesday. On this particular occasion, S. M. and R. did simply seem to cross communications such that S. M. did not get R.’s in time to know that the visit was still contemplated for Wednesday. Both parties testified that the next time there was a strike day on a Wednesday (which was more recently), they were able to arrange for the visit to occur on Friday. S. M. described both he and S. very much enjoying the Wednesday visits, including where he was able to take S. to his home to become comfortable there.

37Unfortunately, the same cannot be said for the Sunday visits. As I have indicated, E. has continued to be resistant to the visits or refuse to participate. At times, S. M. has simply called R. to pick E. up a few minutes into the visits. When she does so, R. has not permitted S. to remain visiting with S. M. On one occasion, S. M. even called the police to locate the girls as they had disappeared on him. They had been picked up by R. at E.’s request, but the former did not inform S. M. There have been a few exceptions to this pattern. One was when S. M. took the girls to the Bayshore Shopping Mall and they did a pottery project together, which S. M. described them all thoroughly enjoying. They were supposed to return to pick up their completed items the following Sunday, but unfortunately, E. was back to being resistant and refused to do so. Another positive visit was a longer one in or about October (it included some make-up time from S.’s missed October 16 visit), where S. M. took the girls to the Museum of History in Hull, and the visit went exceptionally well. R. then proposed through her counsel that the hours of the Sunday visits be extended to five or six hours with a view to moving to overnights, ²³ with which S. M. agreed through his counsel commencing the first weekend in November.²⁴

38During this period, the parties had engaged and been working with a Ms. Kelly Savage on reunification. They had earlier agreed on Ms. Nadine Crowley from the list of possible candidates provided by Ms. Claridge, however, by the time they came to that understanding, Ms. Crowley was no longer available. S. M., therefore, identified Ms. Savage based on what he understood her credentials to be and based on her location in Kanata, which was convenient to both him and R. Ms. Savage began working with the family in or about September of 2019.

39On October 9, 2019, Ms. Savage sent both S. M. and R. a document entitled “Second Chances, A Guidebook for Parents Wishing to Reunite with their Children”.²⁵ On October 10, 2019, Ms. Savage sent them both a letter in which she stated in the first paragraph:

Based on my review of all documents provided, as well as my personal observations during my meetings with both children, it is my professional opinion that both girls have been alienated from their father. Without going into detail at this time, they both exhibit the classic symptoms of alienation. These distorted perceptions of their father continue to cause tremendous emotional and psychological harm to both of them.

40In an email dated October 7, 2019, after explaining some of the work that needed to be done, Ms. Savage communicated to R. that “if reunification does not work, the next step (per all the research) is removing the children from you for a specific period of time (usually 6 weeks minimum) and not allowing any contact. I don’t want to see this happen, so I think it’s critical for everyone to start over and try.”²⁶ On October 19, 2019, Ms. Savage had another email exchange with R., who appeared to be arguing with her over “forcing” the children to respect S. M. In it, Ms. Savage wrote that respect was about setting boundaries and that R. was failing to do her job to ensure that the children are following the rules. She wrote: “A judge has ordered you to stop interfering in access. You are interfering whether you see it or not. How are you interfering? By not setting boundaries with the children (they are children) and telling them that they don’t have a choice in this matter.”²⁷

41Ms. Savage concluded her email by stating: “At this point, I do not believe reunification is possible. My recommendation will be change in custody.”²⁸ Ms. Savage also reiterated her concerns to R. in an email dated October 21, 2019.²⁹

42The above-noted expansion of access for November 3 was also confirmed in an email exchange between Ms. Savage and R. and S. M. on November 1, 2019.³⁰ On the same date, which was a Friday, the girls and S. M. attended a scheduled session with Ms. Savage. At 3:15 p.m., Ms. Savage sent an email to both R. and S. M. in which she wrote the following:

At this point, it is my professional opinion that R. is unable to put the best needs of the children first. It is imperative that drastic measures are taken in order to protect the children from further psychological abuse.

Therefore, my recommendations for moving forward at this time are:

That both E. & S. be placed in the sole custody of S. M.
That S. M. shall have sole decision making regarding the girls.
That R. and Shawn Summers shall have no contact whatsoever with the children for a minimum of 6 months. No contact shall include but is not limited to: No phone calls, texts, emails, going to the schools, etc.
That the above recommendations shall be reviewed in 6 months from todays date at which time I will review whether this arrangement continues to be in the best interests of the children.
Any contact between the children and other family members shall be at the sole discretion of S. M., in consultation with me.
In order for R. to make the necessary changes, I recommend she participate in weekly therapy with a provider who has experience dealing with parental alienation.
R. shall sign a release of information allowing communication between the therapists in order to monitor progress.
At the end of the 6-month period I will determine whether any changes shall be made to this parenting arrangement.³¹

43By this time, Ms. Savage had only met with R. once, with the girls three times – for an introductory meeting in September, for one follow-up session to deal with the occasion in October when S. M. had called the police, and on that day, November 1. Ms. Savage had met with S. M. at the October meeting and November 1 session.

44Based on the recommendations, S. M. reached out to R. to have her prepare the children to transition to his home on Sunday at the time his access was scheduled to occur. Despite that paragraph 31, iv. of Justice MacEachern’s August 2, 2019 order provided (on consent) that the parties were to comply with the recommendations of the reunification counsellor, R. refused to ready the children to be placed in the custody of S. M. Her position was that access was still not going all that well and that it would not be in the best interests of the children to do so. She stated further that she did not understand the reasons for Ms. Savage’s recommendations and that they had not been explained to her (notwithstanding Ms. Savage’s email exchanges with her dated October 7, October 19 and October 21, 2019 referred to in paragraphs 40 and 41 above).

45Some correspondence was exchanged over the weekend between Ms. Southern, Ms. Rwigamba and Ms. Savage, in which Ms. Savage indicated that she would be addressing the recommended changes with the girls the following week.³² R. refused to send the children for access on Sunday unless S. M. stated in writing that he would be returning them at 6:00 p.m. Consequently, no access occurred on November 3, 2019. S. M. sought to get the matter back before the court and a date was scheduled for it to return before Justice MacEachern on December 6, 2019. (S. M. had previously been permitted to Amend his Answer to seek an order of sole custody to him with no contact with R. for six months).

46S. M.’s next scheduled visit with both girls was on November 10, 2019. On that date, E. refused to participate in the visit. S. M. called R. after about 15 minutes to come and pick up E. because she would not even get in his car. R. did not call E. to encourage her to visit with S. M., nor did either she or Mr. Summers do so when they arrived to pick her up. R. stated in her testimony that she wanted something in writing from S. M. confirming that he was okay with her talking to E. during his access time, as she did want to help but she did not want to be accused of interfering with his access. R. also communicated this to S. M. in an email dated November 11, 2019.³³

47The children were scheduled to see Ms. Savage on Friday, November 15 and were to be taken to the appointment by S. M. S. M. communicated to R. that he was happy to pick the girls up and take them, “as long as they know they must get in the car and travel with me to Kelly’s”.³⁴ S. M. attended Kelsey’s parking lot at the appointed time, but the girls would not get in his car. According to R., he stated that the meeting with Ms. Savage cost money and was more important than trying to get the girls in the car and left to go to Ms. Savage’s office. R. took the children to the office, but they would not get out of the car. R.’s evidence was that Ms. Savage came and attempted to get them to come to the appointment, and that she threatened them with the police if they did not. Ms. Savage then left, and R. departed with the girls.

48As a result of this interaction, S. M. and R. received an email from Ms. Savage on Saturday in which she stated the following:

In my opinion, the Sunday visits should not continue. R. is not encouraging the relationship, and her presence at the drop off simply causes the girls more harm than good. In addition, it is disrespectful to S. M. and a waste of his time and money.

I believe pick up needs to be at the school, therefore perhaps picking them up on Friday from school and having them overnight is a better option until the court date in December.³⁵

49In the same communication, Ms. Savage asked S. M. if he agreed to not have his visit the following day (Sunday, November 17), and if so, she would write a formal letter “indicating that it was my suggestion and should not be framed as your lack of trying.” S. M. did agree in an email chain that included R., however, because R.’s lawyer did not received confirmation of this from S. M.’s lawyer, R. continued to take the girls to the Kanata Centrum on Sundays, for which, S. M., of course, did not show. Visits have since recommenced and generally last for anywhere between 10 and 20 minutes. S. M. has continued to exercise access to S. on Wednesdays.

50The parties decided at or shortly after the December 6, 2019 court appearance that, given the matter was scheduled to proceed in the January trial sittings and given the evidence required to determine the best interests of the children, the matter would proceed to trial rather than to a motion on the issue of implementing Ms. Savage’s recommendations. S. M.’s lawyer contacted Ms. Savage in an effort to arrange for her to testify at trial, at which point she got upset with both parties, but particularly with S. M.³⁶, about being “forced” to testify. She promptly accused S. M. of breaching their contract by requesting her to testify and she formally withdrew her services to the family by letter dated December 16, 2019. Although she clearly could have been compelled by subpoena to do so by either party, Ms. Savage was not and did not testify in this trial.

51S. M. indicated that some visits were set up to take place over the Christmas holiday, but that they were cancelled due to a car accident R. and the children were in on December 20, 2019. All three appear to have suffered some soft tissue injuries. No medical evidence was provided to the court, but R. testified that “the doctor”, presumably the children’s family doctor, Dr. Lunney “cancelled them”. S.M. had some pre-scheduled telephone calls with the children for approximately 5 to 7 minutes, during which E. usually didn’t speak. He has resumed having access to S. on Wednesdays after school.

52The parties have agreed to continuing with reunification counselling and have engaged a new counsellor, Ms. Victoria Hasbani.

53With respect to the issue of R.’s income the background facts are that she trained at Algonquin College as a Personal Support Worker and has been employed at the Ottawa Hospital since 2000 as an orderly. She is classified as a casual part-time employee. During the relationship, R. typically worked Friday nights and sometimes Saturday nights. S. M. would care for the children while she was working.

54After the breakdown of the relationship, R. started to take more shifts to make ends meet. A person whom she describes as a friend, but who appears to be involved in all aspects of her life, Shawn Summers, began caring for the children overnight when she was working as early as May or June of 2016. (Indeed, he was at the matrimonial home on the morning of July 16, 2016 when S. M. attended with the police to get his belongings). While R. has worked as many as five night-shifts over the course of seven days, she does not typically do so. She has informed the Ottawa Hospital that her preference is the night shift (which is 12 hours from 7:30 p.m. to 7:30 a.m.), so she is never offered shifts during the day. Typically, she works two to three shifts a week, usually on weekends.

55R.’s reasons for that are that she likes being home with the children in the mornings and after school during the week, and that this was the arrangement that was in place with S. M. during the relationship.

56R. testified that she has applied for permanent fulltime positions from time to time, when they come up on the Ottawa Hospital’s internal posting system. She has never applied elsewhere because her hourly wage would be significantly lower as she would have to start at the bottom of the pay scale. R. currently makes $26.364 per hour. She is also eligible for an overtime differential, weekend pay and holiday pay.

57R.’s Line 150 annual income since separation has been as follows:

2016 - $26,278;
2017 - $37, 183; and,
2018 - $35,477.

58Her income in 2015 was $13,514. R. suggests that the change in her income after separation supports her evidence that she started working more shifts in 2016 and on-wards. Her income for 2019 is also estimated to be approximately $35,000, though she suffered a workplace injury in September of 2019, for which she received accommodation, and has been off again since her car accident on December 20, 2019. R. did not provide any opinion evidence from a treating physician to her ability or inability to work, or as to any prognosis about her return to work. She testified that her doctor thought she could possibly return this month, and she also filed a Record of Employment which shows that her “last day worked” was December 27, 2019, and the reason for issuing the record was “Illness or injury”.³⁷

Positions of the Parties

59R.’s position is that she should be awarded sole custody of the children, and after appropriate consultation with S. M., she should have final decision-making authority for any decision upon which the parties cannot agree. She seeks access to S. M. every second weekend from after school on Friday to 6:00 pm on Saturday, access to E. on Monday’s after school to 6:30 pm and continuing access to S. on Wednesday from after school to 6:30 p.m. She also seeks to put in place a regime of holiday access.

60S. M.’s position is that he seeks an order placing the children in his custody for a period of six months with no contact with R. until the latter develops some insight into the impact of her behaviors, with Ms. Hasbani to review the situation at the end of the period to determine what, if any, changes are required. S. M. seeks to ultimately get to a 50/50 shared parenting regime. S. M. is also seeking to have income imputed to R. at $55,000 per year.

Analysis

Imputation of Income

Analysis

61Section 19(1)(a) of the Federal Child Support Guidelines permits the court to impute additional income where a spouse is intentionally underemployed:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

62In Drygala v. Pauli,³⁸ the Ontario Court of Appeal set out a three-part analysis to be used when assessing intentional unemployment or underemployment pursuant to the s. 19(a) of the Guidelines:

Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question #2 is no, what income is appropriately imputed in the circumstances?

63Parents have a joint and ongoing obligation to support their children. To meet this legal obligation, a parent must earn what he or she is capable of earning.³⁹

64Clearly, R. has made choices about the type and degree of work she is prepared to do. She is capable of working day shifts. She is also capable of working more night shifts; she simply chooses not to do so based on her preference of being home when the children are during the week. R. did not provide any evidence as to what the cost of care for the children would be in her absence. Furthermore, her evidence is that Mr. Summers looks after the children whenever she is working now. Although she tried to claim that there is a cost to his care of the children, she did not put any childcare costs in her Financial Statement dated January 29, 2020, nor did she show any debt related to childcare costs. Her evidence, moreover, with respect to the role of Mr. Summers in her life completely lacked credibility in every aspect. She claimed not to be in a relationship with Mr. Summers, but only friends, whereas S. described him to Ms. Claridge as her “daddy”, who lived with them (along with his own son), slept with and hugged and kissed mommy. Mr. Summers did not testify in the trial, though he was present throughout. R. first testified that he and his son did not live with her, but later changed her testimony to them living with her now, or “transitioning” since the beginning of January. It was unclear to me what purpose R. had in maintaining that Shawn Summers didn’t live with her when clearly, he does and likely has since at least July of 2016. I suspect that it may have something to do with the financial issues, and whether there is contribution to her household from a second income, issues which were settled by the parties and not before me. However, R.’s efforts to convince the court that he did not live with her only served to lesson her credibility. In any event, by virtue of the settlement of their financial issues, the parties are to share childcare costs proportionate to their incomes, so R. would need to provide proof of such costs upon seeking reimbursement for them. She has not done so.

65R., moreover, seemed to rely heavily on the state of affairs that existed during the marriage, that is that S. M. worked fulltime to support the family and she worked only one or two shifts a week, usually on the weekends. She seemed to think she could continue to do so because that is what they agreed when they were together (though the evidence was also contradictory on any such agreement). R.’s position in this regard completely ignores a) that the relationship broke down and b) her own obligation to support the children to the degree that she is capable, as per the dictates of Drygala and other cases that have followed it.⁴⁰

66S. M. has the burden to meet in requesting an imputation of income, and I am of the view that he has done so. He has calculated that if R. worked four shifts per week for 50 weeks at $26.364 per hour, she would be capable of earning $63,273.60 per annum. This is based solely on her hourly rate, and does not consider overtime, shift differential, holiday pay or a weekend rate. This is as a casual part-time employee. If R. was employed as a fulltime employee, she would make $54,837.12 again based only on her hourly rate for 40 hours per week and 52 weeks of the year. She would, in this case, also be entitled to paid vacation and health benefits.

67S. M. is seeking an order imputing an annual income of $55,000 to R. Given that R.’s hourly rate would be somewhat lower were she a fulltime employee, and for the reasons given above, I find that it is reasonable to impute an annual income to R. of $50,000 retroactive to August 1, 2019.

Parenting

68S. M. has asked the court to make a finding that R. has alienated the children from him. I do not hesitate to do so.

69In the case of Malhotra v. Henoeffer, 2018 ONSC, Justice Nicholson, citing a series of cases, set out at paragraph 109 of his decision a list of indicators of alienation as follows:

Child Behaviours:

View of parents one-sided, all good or all bad; idealizes one parent and devalues the other;
Vicious vilification of target parent; campaign of hatred
Trivial, false and irrational reasons to justify hatred
Reactions and perceptions unjustified or disproportionate to parent's behaviours
Talks openly to anyone about rejected parent's perceived shortcomings
Extends hatred to extended family and pets (hatred by association)
No guilt or ambivalence regarding malicious treatment, hatred, etc.
A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
Anger at rejected parent for abandonment; blames him/her for divorce
Speech is brittle, a litany; obsessed; has an artificial quality; affect does not match words: no conviction;
unchildlike, uses adult language; has a rehearsed quality;
Stories are repetitive and lacking in detail and depth;
Mimics what siblings report rather than own experience;
Denial of hope for reconciliation; no acknowledgement of desire for reconciliation
Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent.

Alienating Parent Behaviours

Allows and insists that child makes decisions about contact;
Rarely talks about the other parent; uninterested in child's time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child's return from visit;
No photos of target parent; removes reminders of the other parent;
Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant;
No encouragement of calls to other parent between visits; rationalizes that child does not ask;
Tells child fun things that were missed during visit with other parent;
Indulges child with material possessions and privileges;
Sets few limits or is rigid about routines, rules and expectations
Refuses to speak directly to parent; refuses to be in same room or close proximity;
Does not let target parent come to door to pick up child;
No concern for missed visits with other parent;
Makes statements and then denies what was said;
Body language and nonverbal communication reveals lack of interest, disdain and disapproval;
Engages in inquisition of child after visits;
Rejected parent is discouraged or refused permission to attend school events and activities;
Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain;
Distorts any comments of child that might justify accusations;
Doesn't believe that child has any need for relationship with other parent
When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent;
Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child;
Exaggerates negative attributes of other parent, and omits anything positive;
Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation;
Projection of own thoughts, feelings and behaviours onto the other parent;
Does not correct child's rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others;
Convinced of harm, when there is no evidence;
False or fabricated allegations of sexual, physical and/or emotional abuse;
Denigrates and exaggerates flaws of rejected parent to child says other parent left "us," divorced "us" and doesn't love "us";
Over-involves child in adult matters and litigation;
Child required to keep secrets and spy or report back on other parent;
Child required to be messenger;
Overt and covert threats to withdraw love and affection from child unless other parent is rejected;
Extreme lack of courtesy to rejected parent;
Relocation for minor reasons and with little concern for effects on child

70Starting with the behaviours of the child:

(1) I heard evidence that E.’s view of S. M. was essentially all bad. She reported to Ms. Claridge that S. M. is “mean”, “lies” and did not want to see her.

(2) E. has trivial, false and irrational reasons to justify her disinterest in S. M. She has no knowledge, nor was any evidence led, of S. M. having done anything to harm her that would justify her reaction to him. Ms. Claridge reported that in her interviews with E., she had no recollection of anything having to do with the allegations of what happened with her cousin. Yet, in the letter she handed to S. M. on April 15, 2018, she asked him why he didn’t believe or protect her when she was “sexual assaulted”.

(3) E.’s reactions to and perceptions of S. M. are completely disproportionate to his behaviours. The observational visit at the Kanata Public Library on January 27, 2019 is a case in point. S. M.’ behaviours were either innocuous or positive in terms of his engagement with S., and E.’s reactions were unjustified and disproportionate.

(4) E.extends hatred to S. M.’s extended family, even though her experience with them, particularly S. M.’s parents, was very positive prior to July 2014. In her letter, and again although she had no recollection at the end of 2018 of the alleged inappropriate sexual touching, E. stated that “you and mommy promised that I would never have to see them again (your family) after I was sexual assulted [sic].” This both discredits R.’s evidence that S. M.’s family essentially abandoned E. (as it contends that E. didn’t want to see them), and supports that E. was being told bad things about S. M. and his family. Ms. Claridge testified that as it related to S. M.’s family, “her mom knew stuff and she had to trust her mom that they are people she shouldn’t see”. Ms. Claridge testified that to her E. seemed confused about not seeing her paternal grandparents, because she didn’t have her own reasons why. Notwithstanding what she said in her 2018 letter, E. didn’t understand the disappearance of her paternal family.

(5) E. has a stronger, but not necessarily healthy, psychological bond with R. then she does with S. M. Ms. Claridge was exceedingly concerned about E. becoming the spokesperson for R., which in turn put E. in the position of being the person to blame for visits not going ahead at 11 years of age. Her concern for someone like E. was whether she would develop feelings of anxiety and depression from having to carry the burden of these decisions.

(6) E. has a great deal of anger directed at S. M. for abandonment, and blames him for leaving, “cheating” and “lying”. In her April 2018 letter, E. asks S. M. why he messed up the family by “cheating and lying to us” (emphasis added) and why he didn’t “bother with us for the past 2 years” (emphasis added).

(7) E. uses adult language and has a rehearsed quality. She spoke of sexual assault and failure by S. M. to protect her in her April 2018 letter, and she repeats allegations of S. M. cheating and lying;

(8) E.’s stories are repetitive and lacking in detail and depth. In fact, E. doesn’t even have stories. There is little depth to her reasons for not wanting to see S. M., and no detail at all. S. M. indicated that E. simply says “no” to any plan he makes without providing any reason. Ms. Claridge testified that there wasn’t a lot of substance to what E.’s concerns were, rather they were centered on her mom having information that S. M. was a bad person, that his family members were “bad” and “mean”.

(9) E. exhibits no acknowledgement of the desire for reconciliation. This is notwithstanding that Ms. Claridge testified that she saw a bit of warmth when E. was with S.M. on December 13, 2018, and he apologized to her. E. nodded at that meeting about prospect of future visits but was positively surly at the next one. Ms. Claridge also testified that E. demonstrated the ability to warm up to dad so long as mom not around.

71With respect to the alienating parent’s behavior, present in this case were the following:

(1) R. allows and insists that E. make decisions about contact with S. M. She also allows and insists that E. do so for S.. Although S. M. had a right to access with S. from the time of the first order in April of 2018, R. would not permit S. to visit with S. M. on her own.

(2) There are no photographs of S.M. in R.’s home, including in the children’s bedroom. R. testified that there are photographs of S.M. in the closet “and the children know where they can find them.”

(3) R. was quick to discount S.M.’s positive visit with the girls on December 13, 2018 as trivial and unimportant, by commenting negatively on the “sugar high” the girls would have from the snacks S.M. brought them. She was exceedingly negative for the entire January 27, 2019 observation visit.

(4) R. has provided absolutely no encouragement to the girls to call or contact S.M. by telephone or otherwise. In fact, the evidence led at trial was that starting in 2016, S.M. would call the house until the land line was disconnected, and then R.’s cell phone, but that she would never answer it. R. admitted to not answering the phone because S.M.’s number came up as unknown on her phone. Essentially, R. never phoned S M. or emailed S.M. to suggest access or plan for same, and never answered her phone when he called. In a letter from Ms. Coulterman to Ms. Rwigamba dated April 27, 2018, the former wrote: “Should the children wish to contact S.M., please provide them with his email address: [which she then provided].⁴¹ I received no evidence which suggested that R. did pass on the email address to the children, or that she encouraged them to contact S. M.. R. only recently agreed to S. M. placing calls to the girls at specified times over the Christmas holidays, because she cancelled face to face visits after the car accident. S. M. has otherwise never had telephone, skype or FaceTime access with E. and S.

(5) In the same manner, by not answering her phone, R. has refused to have any direct communication with S.M. Again, only recently, since about October of 2019 has there been any email contact between them.

(6) R. has no concern for missed visits with the other parent. Indeed, she encourages it by having E. act as her spokesperson in refusing the visits. She has, at times, prompted E. to speak up and say she doesn’t want to see S.M. She has indicated to Ms. Claridge and to the court that her responsibility if fulfilled by bringing the children to the exchange.

(7) R.’s body language and nonverbal communication reveals lack of interest, disdain and disapproval in S. M.’s visits with the children. This was witnessed directly by Ms. Claridge in both the December 2018 and January 2019 visits.

(8) R. clearly doesn't believe that child has any need for relationship with other parent. As Ms. Claridge found, she essentially does not support the children having a relationship with S.M.

(9) R. refers to S.M. and his family members as “bad” or “mean”, and I received absolutely no evidence of R. having ever said anything positive about S.M. to the children, or to Ms. Claridge. To Ms. Claridge, R. presented that S.M. had an affair, that he wasn’t supportive of E., that he lied, and that E. was abused in his family’s home (all the same things E. questioned S. M. about in her letter). She certainly did not say anything positive about S. M. to the court, though she did acknowledge, after a lengthy pause, that he loves his daughters.

(10) R. frequently and consistently distorts history and S.M.’s participation in the children’s lives. Most significantly, she accuses S.M. of abandoning and being disinterested in the girls. The perhaps most tragic aspect of this case is that it does not contain the hallmarks of a bad or volatile breakdown in the relationship. There are no allegations of financial or emotional abuse, no allegations of domestic violence and no incidences of police or CAS involvement (but for the investigation of the 2014 incident of sexual touching by a young cousin and the 2016 keep the peace attendance at the matrimonial home). The parties simply separated in May of 2016. There is absolutely no reason that amicable arrangements for S. M. to see the children regularly could not have been made. Rather than that happening, R. has distorted their history into one of betrayal, abandonment and disinterest by S.M., and has repeatedly shared that history with E.

(11) R. does not correct E.’s rude, defiant or omnipotent behavior; indeed, she encourages the latter. She does not impose consequences, such as removing E.’s access to electronic devices, to her refusals to participate in visits.

(12) R. is convinced that E. was sexually interfered with when she was eight years old by her then 12-year-old female cousin. She prohibited contact with the paternal family from July of 2014 onwards and she projects to E. that S. M. failed to protect her. R. persists with this despite that the Children’s Aid Society investigated and did not verify the allegations, and despite that E. had no recollection of it in her discussions with Ms. Claridge.

(13) R. has certainly messaged to E. that S. M. “left us”, “cheated on us” and “lied to us”. R. denies ever telling E. such things. She also denies having a hand in writing the letter E. gave S. M. in April of 2018, though she certainly also wanted answers from S. M. to the questions. While E. may have in fact written the letter on her own, the content is not anything like that of an 11-year-old child who hadn’t seen her father in two years. The questions posed are, in fact, demonstrative of the distorted history created by R.

(14) R. has undoubtedly involved E. in adult issues as set out above, but also in the litigation. R. reported to Ms. Claridge that E. “accidently saw one court paper” and then she had to explain what was going on to her. E.’s references in item #7 of her letter go far beyond what would have been in any court document she “accidentally” read.

(15) Finally, R. has required E. to be the messenger, something, as I have indicated above, that Ms. Claridge has found particularly troubling.

72R.’s evidence overall was not credible. It contained internal contradictions and, at times, made no sense. One example, already outlined above, is her evidence with respect to Mr. Summers not living with her. R.’s evidence in relation to the July 16, 2016 attendance by S.M. at the matrimonial home to collect his belongings, is another case in point. R. insisted in her testimony that E. saw S. M., his sister and brother in law and the police outside without her knowledge from the bathroom window when she woke up to go to the bathroom, and that E. was hurt that S. M. a) brought his family members and b) didn’t ask or try to see her and S. This evidence is contradictory to the police report, which notes that the children were asleep at the time. It is also contradictory to what Ms. Claridge stated R. told her in her report at page 5, which was: “R.M. said she and E. atch [sic] S. M. shake the police officer’s hand, and this was upsetting to E. .”⁴² Rather than E. being upset by this event, it is more likely that R. was hurt by S. M. a) coming to get his belongings in a final way and b) finding Mr. Summers in his home at eight o’clock in the morning. I find that R. has created a distorted version of this event for her own purposes and reinforced it with E. R.’s evidence also defied logic at times, most notably when she explained the contents of E. ’s letter emanating from arguments E. may have overheard for some time prior to separation (two years before the letter was written by an 11-year-old child).

73While I am prepared to find that R. has alienated the children, E. in particular, from S.M., I am not prepared at this time to order a change in custody as being in the best interests of the children. Ms. Claridge testified that it would be very difficult to go from hardly any contact for over the past two years to a change in custody, though she was clear that she had no involvement with the family past the release of her report in March of 2019 and could not make recommendations in that regard. What Ms. Claridge did see was some hope, firstly for S. It was her view that if S. had been alienated from S. M., she would not be able to have the positive relationship she appeared to be experiencing, particularly since the Wednesday visits from school were implemented. This was likely not for lack of trying on R.’s part. Ms. Claridge testified that while S. clearly received the same negative messaging about S.M. from R., she was unable to connect it to the person she went to visit at the library. Hence, S. has been able to simply see S. M. for who he is and enjoy her time with him. Ms. Claridge indicated that she also saw positive signs from E. at different points, and that if the narrative could be changed from that R. had been giving her for the last four years, E. could develop a positive relationship with S.M. Additionally, unlike in some of the other cases to which I was referred, S.M. was, as a matter of fact, absent for long periods of time that he ought not to have been. He bears some responsibility in the current state of affairs.

74Furthermore, while a change of custody is what was communicated to the parties as a recommendation of Ms. Savage, she did not testify as to how she came to that conclusion, nor was she subject to cross-examination on having reached it. The information provided from Ms. Savage during the trial was essentially hearsay, and while I admitted it as part of the narrative as to how the parties got to where they are, I cannot rely on it in coming to my conclusions. Finally, the parties have engaged Ms. Hasbani as their new reunification counsellor, and I am of the view that Ms. Hasbani may be of assistance in helping R. change her narrative, if that is possible.

75I am, at the same time, not prepared to make a final order today, but only a temporary one. The parties will be required to reattend before me in four months time, on June 16, 2020 at 10:00 a.m., for a review the progress made, and in particular whether R.’s narrative has changed, and I will make a determination at that time as to whether a change of custody may be in the best interests of the children pursuant to Section 16 of the Divorce Act.

Order

76In the interim, I make an order as follows:

Commencing on Wednesday, February 12, 2020, S.M. shall have access to E. and S. every Wednesday from after school until 6:30 pm. Pick up shall be at the children’s respective schools and drop off shall be at the Kelsey’s parking lot at Kanata Centrum;
Commencing Friday, February 14, 2020, S. M. shall have access to E. and S. every second weekend from Friday after school until Saturday at 6:00 p.m. Pick up shall be at the children’s respective schools and drop off shall be at the Kelsey’s parking lot at Kanata Centrum;
Commencing March 11, 2020, S. M. shall have access to E. and S. every Wednesday from after school until Thursday morning at school. Pick up and drop off shall be at the children’s respective schools;
Commencing March 13, 2020, S. M. shall have access to E. and S. every second weekend from Friday after school until Sunday at 6:00 p.m. Pick up shall be at the children’s respective schools and drop off shall be at the Kelsey’s parking lot at Kanata Centrum;
Commencing April 10, 2020, S. M. shall have access to E. and S. every second weekend form Friday after school until Monday morning at school. Pick up and drop off shall be at the children’s respective schools;
The parties shall cooperate and comply with the expectations of the reunification counsellor, Victoria Hasbani.
Ms. Hasbani shall be provided with a copy of these Reasons for Decision by counsel for S. M. forthwith. Ms. Hasbani is requested by the court to privately review my below paragraph 81 with E. in a child friendly manner at her sole discretion;
Ms. Hasbani is requested to provide a report to the court on the progress made by the parties seven days before the return date of this matter to court;
R. shall ensure that the children attend any and all appointments set by Ms. Hasbani and shall ensure that they participate in same;
R. shall not cancel any access visits with the exception of if one or both of the children are ill. If a Wednesday visit is cancelled due to illness, it shall be made up immediately. If a weekend visit is cancelled due to illnesses, it shall be made up the immediately following weekend, after which the regular schedule will resume. If a visit is missed because only one of the children is ill, the other child will attend the visit. Access will be made up for the ill child as set out herein;
If, for any reason, the children are not in school, the access exchange shall be at the Kelsey’s parking lot at Kanata Centrum. This includes but is not limited to strike actions, PD days or snow days;
S. M. shall be entitled to have daily telephone access to the children. S. M. shall place a call to R. between 7:00 p.m. and 7:30 p.m. on the days that the children are not in his care. R. shall politely answer the call and provide the telephone to the girls to speak to their father;
E. is not required to attend individual counselling with Ms. Prolas;
E. shall not attend counselling with Ms. Kirkpatrick without the express written consent of S. M.;
R. shall not to make any decisions about services or schools for the children without the express written consent of S. M.;
The parties shall appear before me on June 16, 2020 at 10:00 a.m. to review the above noted access and the progress made in reunification counselling; and,
On a final basis, an annual income of $50,000 shall be imputed to R. for the purposes of support and section 7 expenses retroactive to August 1, 2019.

77Ms. Claridge referred to R. as being only superficially cooperative. I agree entirely. For example, R. has stated that she was always open to S. M. visiting with the children, however, beyond saying he could come to the house to see them anytime he liked, she has never done one thing to promote visits. S. M. testified that at the July 16, 2016 attendance at the house, he was told by the police to not return. After that date, R. disconnected her home phone, and admittedly did not answer her cell phone if the number showed as unknown. She did not contact S. M. to propose any access to the children, ever. When S. M. was asked about his delays in pursuing access, he testified that he “didn’t think it would come to this”. He simply could not understand why he and R. could not have just set in place a parenting regime that made sense and was good for the children. I too do not understand why there has been almost four years of struggle in doing so. These are simply parents who separated and needed to make sensible arrangements for their children. While S. M. must bear some responsibility for his passive approach to the matter, I can understand why he thought there did not need to be a fight about it, let alone a four year one.

78R. was only superficially complaint with court orders as well. She followed those portions of them that were beneficial to her or those which she interpreted as beneficial to her, and then simply didn’t follow them otherwise. For example, she relied on the school pick up to only commence weekday access with S. in September as opposed to when the order was made. She also relied on the Sunday access being for both children to deny S. M. access to S. when E. didn’t want to stay. She, in fact, ignored entirely that S. M. had a legal right to access to S., whether E. chose to stay or not. On other occasions, she simply cancelled access, such as when the girls had an activity to attend during S. M.’s court ordered time with the children. On January 27, 2019, she completely ignored Justice O’Bonsawin’s order of January 8, 2019 that she was to leave the children in the care of S. M. at the observation visit.

79R. was equally superficial in her cooperation with reunification counselling. She cancelled a visit where she and S. M. were supposed to meet with Ms. Savage, saving that E. was sick and it was inappropriate for S. to come and watch TV in another room while they met. She argued extensively by email with Ms. Savage rather listen to her suggestions and try to implement some changes.

80I wish to communicate to R. that superficial cooperation with the reunification counsellor or superficial compliance with court orders will no longer suffice. Not only will they no longer suffice, but they will put you at risk of the children being placed in the sole custody of S. M. upon the return of this matter before me, if the evidence supports that it is in their best interest to do so. It is my expectation that you will comply with this order in its entirety, R., and that you will cooperate fully with Ms. Hasbani. I wish also to advise you that it is my intention to advise E. of precisely what you have said to me in this court, namely that you believe that a positive relationship with S. M. by the children is very important to them, that you support it completely, and that you are prepared to do whatever you can to help make it happen. To that end, the remainder of my decision is directed to E. and is to be shared with her by Ms. Hasbani in a child appropriate manner at her sole discretion.

For E.

81E., I know that your mom has told you certain things about court in the past and about what orders the judge has made. Well, I am “the judge” in the case about you and S.. I have listened very carefully to everything your mom, R. and your dad, S. M. had to tell me. I also listened to Janet Claridge, the lady who came to see you last year to talk to you about your family. I don’t know exactly what your mom has told you about your dad. I do know that you told Janet that your mom and Shawn think your dad is a bad person. You also told Janet that your mom told you that your grandparents are mean and that she doesn’t like them. You may feel that your mom doesn’t support you having a relationship with your dad, S. M., but your mom told me many times that she is very supportive of you seeing him. She told me that she wants you to have a good relationship with S. M. and that it is important for you that you do. She told me that she would do anything to help make that happen. Your mom acknowledged the positive relationship that S. is developing with your dad, and she said that she would like to see that for you too. I know that you have expressed at times that your dad is not interested in you and doesn’t want to see you. I can tell you that nothing can be further from the truth. Your dad told me many times that he loves you very much and he really wants to spend time with you. I know he has told you that many times as well. Your mom also said that she knows your dad loves you and S.. That is why he keeps coming for the visits that are scheduled with you, even when you don’t want to stay long or say you don’t want to see him. He told me about having a very nice time with you at the Museum of History in Hull, and about making pottery together at the Bayshore Shopping Center. He even showed me pictures of you and S. having a good time at the museum. Your dad was very happy about those visits. Janet expressed concern to me, and I have the same concern, that you feel like you need to or are able to make the decision about whether you see your dad or not. You should never feel like you need to make that decision. In fact, you should not be making that decision. This is not a burden that you should have to bear; such decisions need to be made by the adults who have what is best for you in mind. Your mom and dad have asked me to make them. I have decided that it is very important for you to see your dad more often, and your mom has told me that she agrees with that. I am going to have you start visiting with your dad by being picked up at school by him, just like S. is. Your mom also agrees with this. I am also making the decision that you will start to spend some time at your dad’s house, including for some sleepovers. S. M. has told me that S. has very much enjoyed going to his house and that she loves the bedroom he has prepared for you both there. I do not expect you to make any decisions about this, E. I only want you to feel free to enjoy your time with your dad and to know that all of the adults in your life are supportive of that. I am very interested in you E., and in how things will go for you in the next few months, so I am going to have your mom and dad come back and see me after you have spent some time visiting with S. M. at his home. I very much hope to hear positive reports about your time together and that your relationship has improved. I wish you the very best E., and I look forward to hearing about you further when this matter returns before me.

[81]

Justice Engelking

Released: February 10, 2010

COURT FILE NO.: FC-17-1670

DATE: 2020/02/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R. M. (R. Mother)

Applicant

– and –

C. S. A. M. (S.M. Father)

Respondent

REASONS FOR JUDGMENT

Engelking J.

Released: February 10, 2020

Footnotes

Email from Sloan to Wilson dated February 7, 2017, Trial Exhibit #50 is the first communication referred to by the parties.
Letter from Coulterman to Rwigamba dated February 1, 2018, Trial Exhibit #51
Letter from Coulterman to Rwigamba dated February6, 2018
Endorsement of Engelking J. and Minutes of Settlement dated April 4, 2018, Trial Record, Tab 9
Trial Exhibit #54
Letter from Coulterman to Rwigamba dated April 19, 2018, Trial Exhibit #53
Letter from Coulterman to Rwigamba dated April 27, 2018
Email from Rwigamba to Coulterman dated June 9, 2018, Trial Exhibit #15
Endorsement of Engelking J. dated June 13, 208
Report of the Children’s Lawyer dated March 1, 2019, Trial Record, Tab 20
Temporary Order O’Bonsawin J. dated January 8, 2019
Report of the Children’s Lawyer dated March 1, 2019, Trial Record, Tab 20, pages 13-15
Ditto, page 15
Email from Rwigamba to Southern dated June 25, 2019, Trial Exhibit #20
Email from Southern to Rwigamba dated June 26, 2019, Trial Exhibit #20
Email from Rwigamba to Southern dated July 3, 2019, Trial Exhibit #21
Endorsement of MacEachern J. dated August 2, 2019, paragraph 7
Ditto, paragraph 15
Ditto, paragraph 16
Ditto, paragraph 31
Email of Southern to Robert James dated September 10, 2019, Trial Exhibit #74
Email from R. to Janna Tokaryk dated September 6, 2019, Trial Exhibit #22
Email from Rwigamba to Southern dated October 24, 2019, Trial Exhibit #27
Email from Southern to Rwigamba dated October 25, 2019, Trial Exhibit #27
Email from Savage to S. M. and R. dated October 9, 2019, Trial Exhibit #26
Email from Savage to R. dated October 7, 2019, Trial Exhibit #61
Email from Savage to R. dated October 19, 2019, Trial Exhibit #59
Ditto
Email from Savage to R. dated October 21, 2019, Trial Exhibit #59. Ms. Savage had also communicated expectations for parents in cases of unification more generally by email dated October 4, 2018, Trial Exhibit #60
Email exchanged between Savage, S. M. and R. dated November 1, 2019, Trial Exhibit #28
Email from Savage to S. M. and R. dated November 1, 2019, Trial Exhibit #29
Email exchange between Savage, Southern and Rwigamba from November 2-4, 2019, Trial Exhibit 31
Email from R. to S. M. dated November 11, 2019, Trial Exhibit #32
Email from S. M. to R. dated November 11, 2109, Trial Exhibit #32
Email from Savage to R. and S. M. dated November 16, 2019, Trial Exhibit #33
In the Trial Scheduling Endorsement Form filed with the Court, Ms. Savage was actually listed as a witness under R.’s witnesses and not S. M..
Record of Employment dated January 15, 2020, Trial Exhibit #3
Drygala v. Pauli (2002), 61 0.R. (3d) 711 (Ont. C.A.), at para. 23.
Ibid., para. 32
See Lavie v. Lavie, 2018 ONCA 10 and Miller v. Miller, 2018 ONSC 5003
Letter from Coulterman to Rwigamba dated April 27, 2018, Trial Exhibit #54
OCL Report dated March 1, 2019, page 5

Footnotes

Email from Sloan to Wilson dated February 7, 2017, Trial Exhibit #50 is the first communication referred to by the parties.
Letter from Coulterman to Rwigamba dated February 1, 2018, Trial Exhibit #51
Letter from Coulterman to Rwigamba dated February6, 2018
Endorsement of Engelking J. and Minutes of Settlement dated April 4, 2018, Trial Record, Tab 9
Trial Exhibit #54
Letter from Coulterman to Rwigamba dated April 19, 2018, Trial Exhibit #53
Letter from Coulterman to Rwigamba dated April 27, 2018
Email from Rwigamba to Coulterman dated June 9, 2018, Trial Exhibit #15
Endorsement of Engelking J. dated June 13, 208
Report of the Children’s Lawyer dated March 1, 2019, Trial Record, Tab 20
Temporary Order O’Bonsawin J. dated January 8, 2019
Report of the Children’s Lawyer dated March 1, 2019, Trial Record, Tab 20, pages 13-15
Ditto, page 15
Email from Rwigamba to Southern dated June 25, 2019, Trial Exhibit #20
Email from Southern to Rwigamba dated June 26, 2019, Trial Exhibit #20
Email from Rwigamba to Southern dated July 3, 2019, Trial Exhibit #21
Endorsement of MacEachern J. dated August 2, 2019, paragraph 7
Ditto, paragraph 15
Ditto, paragraph 16
Ditto, paragraph 31
Email of Southern to Robert James dated September 10, 2019, Trial Exhibit #74
Email from R. to Janna Tokaryk dated September 6, 2019, Trial Exhibit #22
Email from Rwigamba to Southern dated October 24, 2019, Trial Exhibit #27
Email from Southern to Rwigamba dated October 25, 2019, Trial Exhibit #27
Email from Savage to S. M. and R. dated October 9, 2019, Trial Exhibit #26
Email from Savage to R. dated October 7, 2019, Trial Exhibit #61
Email from Savage to R. dated October 19, 2019, Trial Exhibit #59
Ditto
Email from Savage to R. dated October 21, 2019, Trial Exhibit #59. Ms. Savage had also communicated expectations for parents in cases of unification more generally by email dated October 4, 2018, Trial Exhibit #60
Email exchanged between Savage, S. M. and R. dated November 1, 2019, Trial Exhibit #28
Email from Savage to S. M. and R. dated November 1, 2019, Trial Exhibit #29
Email exchange between Savage, Southern and Rwigamba from November 2-4, 2019, Trial Exhibit 31
Email from R. to S. M. dated November 11, 2019, Trial Exhibit #32
Email from S. M. to R. dated November 11, 2109, Trial Exhibit #32
Email from Savage to R. and S. M. dated November 16, 2019, Trial Exhibit #33
In the Trial Scheduling Endorsement Form filed with the Court, Ms. Savage was actually listed as a witness under R.’s witnesses and not S. M..
Record of Employment dated January 15, 2020, Trial Exhibit #3
Drygala v. Pauli (2002), 61 0.R. (3d) 711 (Ont. C.A.), at para. 23.
Ibid., para. 32
See Lavie v. Lavie, 2018 ONCA 10 and Miller v. Miller, 2018 ONSC 5003
Letter from Coulterman to Rwigamba dated April 27, 2018, Trial Exhibit #54
OCL Report dated March 1, 2019, page 5

M. v. M., 2020 ONSC 898

Case Summary

Background Facts