COURT FILE NO.: FS-19-38
DATE: 2021 05 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.C.
Applicant
– and –
S.C.
Respondent
John G. Cox and Natalie Bazar, for the Applicant
Brian Burke and Joelle Ruskin, for the Defendant
HEARD: October 20, 21, 22, 23, 26, 27, 28, 29, 30 and November 3, 2020
Additional REASONS FOR JUDGMENT
Chozik J.
I. OVERVIEW
[1] The sole issue in this trial was what decision-making and parenting arrangement is in the best interests of the parties’ child, N. (age 10).
[2] The Applicant, N.’s mother, (who I will call the Mother) sought an order for joint custody, parallel decision-making and equal access or parenting time.
[3] The Mother’s position is that she is a loving and engaged parent, to whom N. is closely bonded. She testified that certain concerning post-separation conduct attributed to her is now behind her, and that she is capable of co-parenting. The Mother submits that it is in N.’s best interests to have maximum time with both parents and to maintain the status quo 50/50 parenting schedule that has been in effect since March 2020.
[4] The Respondent, N.’s father, (who I will call the Father) sought an order that he have sole custody and decision-making responsibility. He proposed a parenting schedule whereby N. would spend 5 out of 14 days with his mother. The Father also asked that certain temporary therapeutic interventions be imposed.
[5] The Father’s position is that the Mother’s post-separation conduct, fuelled to some extent by her mental health and personality traits, put N. at risk of emotional and psychological harm. Co-parenting is impossible, and not in N.’s best interests. The order sought by the Father is entirely consistent with the recommendations of Howard Hurwitz, who conducted an exhaustive assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[6] In preliminary Reasons for Judgment dated January 8, 2021, I made the Final Order sought by the Father. I had concluded that it was in N.’s best interest for the Father to have sole decision-making responsibility and an unequal parenting time schedule that resulted in N. spending slightly less than half of his time with the Mother. I also ordered that the temporary therapeutic interventions proposed by the Father be put in place. The Final Order took effect January 11, 2021.
[7] I had indicated that further Reasons for Judgment would follow. These are those Reasons.
II. BACKGROUND
[8] The parties met in high school. They dated on and off in their twenties and married in 2001. They separated on March 29, 2019, following a 17-year marriage and a 22-year relationship. At the time of the trial, the Mother was 46 and the Father was 45.
[9] During the early part of the marriage, from 2001 to 2010, the Mother worked in radio and television. From 2010 to 2018, she worked in the non-profit sector as an events coordinator. In 2018, after she was laid off,[^1] she became a stay-at-home mother.
[10] The Father is a chartered professional accountant and a chartered financial analyst. Prior to his termination in 2020 because of criminal charges (discussed below), he worked as a Chief Financial Officer in a closely-held successful private equity firm he helped build.
[11] The Mother has a history of ovarian and breast cancer, involving many surgeries. These prevented her from having biological children. She testified, and I accept, that one of her deepest desires in life was to be a mother. Her battles with cancer were described by Dr. Hy Bloom, a forensic psychiatrist who assessed her, as the “severest forms of attacks on her femininity and aspirations for motherhood as one could imagine”. The Mother took those devastating events and attempted to help others in similar situations through her work in the non-profit sector. Dr. Bloom and Dr. Daniel Fitzgerald, a psychologist who assessed the Mother, both observed that she was resilient, courageous and determined in the face of such extreme life-altering events.
[12] The parties adopted their son, N., on July 1, 2011, from an orphanage in Colombia. At the time of the adoption, N. was less than a year old. He is now 10 years old. By all accounts he is an intelligent, sensitive, resilient, active, creative, and loving boy. Although at times the Mother had taken a different position, at trial there was no dispute that N. is closely bonded to both parents.
[13] When N. was in grade one, he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). He receives medication to assist him with this. N.’s ADHD was causing him to suffer from behaviour issues, including inattention, disorganization, emotional reactivity, fidgeting, and restlessness.[^2] He now attends a private Montessori school in Oakville. Since August 2019, N. has been attending therapy with Andrea Barclay biweekly. Ms. Barclay testified at this trial about some of the impacts of post-separation conflict on N. Her evidence is discussed later on in this decision.
a. Key Litigation Events
i. History of Proceeding
[14] The parties separated on March 29, 2019, when the Mother suddenly left the matrimonial home. She did not tell the Father that she was leaving the marriage. Rather, he was served with a restraining order the Mother had obtained against him without notice on March 28, 2019. The ex parte restraining order was issued in the Ontario Court of Justice, where the Mother was self-represented. The restraining order also provided that N. temporarily reside with the Mother. The Father had no access to N. for 15 days.
[15] In her Application filed in the Ontario Court of Justice,[^3] the Mother alleged that the Father had, amongst other things, physically restrained her, terrorized N. and her by yelling and destroying property, and thrown her to the ground. She related in her Application several historical incidents of violence, including an incident in 2015 when she said she saw the Father scream at N. and choke him until the child turned red in the face.
[16] Despite the very serious allegations she made, a mere 15 days later the Mother consented to the restraining order being removed. From April 12, 2019, to May 24, 2019, the Father had limited parenting time, seeing N. on terms.
[17] In her Amended Application dated May 15, 2019 filed in the Superior Court of Justice,[^4] the Mother continued to allege that she had been subjected to frequent bullying, psychological and physical abuse by the Father. She claimed that the Father is emotionally volatile and unable to control his impulses, which result in outbursts of anger directed at herself and N. She claimed sole decision-making responsibility and primary residence for N.
ii. Criminal Charges Against the Father
[18] In October 2019, the Father was charged criminally with four counts of domestic assault and four counts of sexual assault against the Mother. Those charges were based on statements about historical events the Mother made to the police. Bail conditions prohibited the Father from contacting the Mother directly or indirectly, except through counsel. During this trial, on October 27, 2020, those criminal charges were withdrawn by the Crown. I draw no inference from the timing of the withdrawal.
[19] I specifically decline to find that the Crown’s decision was influenced by the Mother or that the charges were withdrawn at her request. There was no evidence before me as to the reason the Crown chose to exercise its discretion to withdraw the charges. I take judicial notice of the fact that the Crown, as a quasi-Minister of Justice, is obliged to exercise its discretion to withdraw charges laid by the police where, in the Crown’s assessment of the evidence, there is no reasonable prospect of conviction: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 64-67.
iii. Parenting Arrangements Over Time
[20] On May 24, 2019, the parties entered into a consent agreement, whereby the Father had parenting time on Wednesdays overnight and alternating weekends. N. resided with the Mother the rest of the time.
[21] On September 13, 2019, the parties entered into an informal without prejudice agreement to continue with the Father having parenting time with N. on Wednesdays overnight and alternating weekends. The matter was referred to Howard Hurwitz for a section 30 Custody and Access Assessment (“s. 30 assessment”) under the CLRA. At the time of the intake, the Mother maintained that she was a victim of domestic violence and claimed that she felt unsafe with the Father.
[22] Commencing in the fall of 2019, Mr. Hurwitz conducted an exhaustive s. 30 assessment. I discuss this assessment in more detail later in the decision. In January 2020, the parties agreed to move N.’s overnights with the Father from Wednesdays to Thursdays. On February 24, 2020, the disclosure meeting took place. The assessment report was formally completed on March 20, 2020.
[23] Considering Mr. Hurwitz’s findings and recommendations, in March 2020 the parties moved to a 50/50 week about parenting schedule on a temporary and without prejudice basis. The parties shared March Break 2020 evenly, with N. spending one week with each parent. Each brought a motion to deal with the parenting schedule pending trial.
[24] On June 5, 2020, the parties entered into a consent agreement, endorsed by Justice Kurz, providing for continuing the status quo, on an interim-interim without prejudice basis, with the Father having interim final decision-making medical authority. On September 15, 2020, Justice Coats adjourned the motions, maintaining the status quo, to be returnable on a date to be arranged if the trial did not proceed during the fall sittings. The issues of decision-making and parenting was bifurcated from financial issues.
iv. Overview of Witnesses at Trial
[25] The trial on the parenting issues proceeded before me. At the trial, in addition to her own testimony, the Mother called Dr. Aldridge, her family doctor and N.’s pediatrician, as a participant expert witness. She also called Dr. Hy Bloom, a litigation expert, to testify about his psychiatric assessment of the Mother. I also heard from Dr. Paul Healey, an emergency room physician who saw N. in April 2020 for a viral infection (not COVID).
[26] At the trial, in addition to his own testimony, the Father called Andrea Barclay, N.’s child therapist, as a participant expert. He called two workers from the Halton Children’s Aid Society (“CAS”): Elaine Falzon and Linda Brooks. He also adduced the entire CAS file and all of the Our Family Wizard (“OFW”) correspondence between the parties, spanning some 750 pages.
[27] I also heard evidence from Howard Hurwitz, the s. 30 assessor, and Dr. Fitzgerald, a psychologist. Dr. Fitzgerald conducted psychological testing of the parties for the s. 30 assessment, as requested by Mr. Hurwitz. These witnesses testified as the court’s witnesses and were examined by the parties.[^5]
[28] In order to avoid repetition, I lay out the evidence from each witness below in the context of the conclusions I’ve made about the Mother’s parenting abilities and how it affects the best interests of the child.
v. Parties’ Positions at Trial
[29] Despite her earlier position, at trial the Mother sought an order for joint custody and the implementation of a parallel decision-making regime. She proposed that the Father have final decision-making authority regarding N.’s medical and extra-curricular needs, while she would have final decision-making authority regarding N.’s education and religion. She sought an equal (50/50) residential schedule for N. on a final basis.
[30] The Father sought an order that he have sole custody and decision-making responsibility. He proposed a parenting schedule whereby N. would spend 5 out of 14 days with his mother. The Father also asked that certain temporary therapeutic interventions be imposed, which are discussed later in the decision.
III. THE EVIDENCE AT TRIAL
[31] Evidence of post-separation conflict was extensive at this trial. It was not really disputed that certain key events had occurred. The events were well documented by various professionals, as well as in a multitude of emails, OFW messages or other contemporaneous communications. The issue between the parties was whether or not this conflict, fueled by the Mother, harmed N. and whether the Mother’s assurances that those events were in the past could or should be accepted.
[32] In the paragraphs that follow, I set out certain key events of post-separation conflict in chronological order.
a. Key Events Post-Separation
i. Spring to Fall 2019
[33] Shortly after obtaining the restraining order, the Mother communicated to her physician, Dr. Aldridge, a series of alleged historical incidents of the Father physically assaulting N. Dr. Aldridge reported those allegations to the CAS. Elaine Falzon investigated the allegations and concluded that there was no evidence to support a verification that N. was at risk with the Father.
[34] In the first few months after separation, the Mother also alleged to Dr. Aldridge that the Father was “drugging” N. in order to manage his ADHD.[^6] Dr. Aldridge testified that she had concerns about the Mother’s thoughts and actions, but she carried out urine drug testing on N. to alleviate the Mother’s concerns. The tests showed no drugs in N.’s system, other than his prescribed ADHD medication. Dr. Aldridge could not recall what she told N. about the drug tests.
[35] In April 2019, the Mother posted on Facebook that she and N. had been victims of the Father’s abuse, that he had left them homeless and penniless, and that they needed help.
[36] In May 2019, the Mother contacted N.’s ADHD clinic and falsely indicated that she had sole medical decision-making authority. During the summer of 2019, the Mother also contacted N.’s dentist and instructed that no appointment could be booked unless she had approved it.
[37] From May to July 2019, the Mother regularly threatened to call or otherwise involve the police if the Father did not meet her demands with respect to timing for drop-offs and which parent should hold on to N.’s ADHD medication.
[38] In November 2019, the Father attempted to fill N.’s ADHD medication and discovered that the Mother had contacted the pharmacy and instructed them that only she could refill N.’s prescription.
ii. Summer and Fall 2019 - Sexual Abuse Allegations
[39] The Mother alleged to child protection services and/or the police that the Father had touched N. in a sexually inappropriate manner on two occasions. First, in July 2019, the Mother reported to the CAS that the Father was squeezing N.’s penis while urinating. In August 2019, the CAS sent the Mother’s counsel a letter in which they explained that it was determined that the pinching or squeezing arose because N. had an infection and the Father was simply trying to ensure that N.’s penis was clean and applying cream.
[40] Second, in October 2019, the Mother alleged that the Father had N. massage him with scented oils for a sexual purpose. She first reported it to Dr. Aldridge, who questioned the child. Dr. Aldridge testified that she asked N. whether the Father had touched his penis, and N. said “no”. N. denied any sexual touching.
[41] When interviewed by CAS about the allegations, N. expressed that his mother thought he was being sexually touched by his father, but that this was not true. That same month, CAS advised the Mother that the information presented by N. was not enough to verify sexual abuse.
[42] The Mother expressed great disappointment to Ms. Falzon that her allegations of sexual abuse had not been confirmed. She called Ms. Falzon and wrote emails in which she asked for information on how to get N. assessed for sexual abuse, was adamant that the massaging was sexual, and informed Ms. Falzon that she would be consulting with police because she was concerned that the CAS was believing the Father over N.
[43] In one of her emails, the Mother wrote:
I am trying to reprogram [N.] with a kinder approach, patience and love. I believe in nurture vers [sic] nature and [N.] is now out of a toxic environment and he is finally starting to turn a corner. He still regresses and I have to redirect his anger, bad manners and shortness and help him think before he reacts. However, I see him slip back after coming back from a week with his father and his shortness comes back in full flight. This is why I feel [N.] does not need to be around his father. He is void of feeling empathy for another human being and most importantly, empathy for his son. [Emphasis added.]
[44] Ms. Falzon testified that she had submitted this case to the McMaster Hospital Child Advocacy and Assessment Program (“CAAP”), which is a dedicated team of social workers, psychologists and doctors who deal with and assess child abuse cases and sexual abuse allegations. Ms. Falzon testified, and the CAS contact records support, that the CAAP did not feel a maltreatment assessment was needed based on the information before them and N.’s interview with Ms. Falzon.
[45] On October 21, 2019, the Mother took N. to the police and complained that the Father had been sexually abusing N.
[46] After reviewing the information provided to them by CAS, the police declined to investigate or lay charges. They informed the Mother that they would not be proceeding with a child abuse investigation and that any child protection concerns would be addressed or determined by CAS.
[47] In the process of making these complaints, the Mother made a statement to the police about historical incidents of abuse between the Father and herself. As a result of those allegations, the Father was charged with four counts of assault and four counts of sexual assault against the Mother. Significantly, as noted by Mr. Hurwitz, all of this occurred during the course of his assessment.
[48] The CAS, Ms. Barclay and Mr. Hurwitz all concluded that the Mother’s allegations of the Father abusing N., either physically or sexually, were unfounded.[^7] N. had either denied the allegations or it was clear to them that N. had been told of the event(s) by the Mother.
[49] They also did not accept the Mother’s allegations that she had been abused by the Father. In particular, Mr. Hurwitz noted that the Mother did not raise any allegations prior to separation, for instance during earlier marriage counselling with Dr. Nixon. I note that prior to the separation, the Mother also did not mention any sort of abuse to Dr. Aldridge, who had been her physician since she was a teenager and N.’s pediatrician from the time of his adoption.[^8]
iii. Winter and Spring 2020 – The Flossing Incident
[50] In late January 2020, N. became extremely upset when the Mother tried to get him to floss his teeth. This escalated quickly and resulted in the Mother taking N. to the hospital when Dr. Aldridge and Ms. Barclay were not immediately available to see him. Notably, N. already had a scheduled appointment with Ms. Barclay the very next day, during the Father’s parenting time. After the hospital visit, and without the Father’s consent, the Mother took N. for a psychiatric assessment. This was against the recommendations of Mr. Hurwitz and Ms. Barclay, both of whom felt that N. had been involved with too many professionals.
[51] When Ms. Barclay asked N. about the flossing incident, he told her that he did not want to floss his teeth and that he had tried to get away. According to N., the Mother dragged him to the couch, lifted him onto the couch, threatened to cancel his play date and pinned him down. N. told Ms. Barclay that his heart and brain were hurting when he heard the play date was cancelled and he wanted to get a knife and stab himself in the heart to stop the pain. He said that he tried to get a knife, but his mother stopped him by putting him in a head lock and restraining him by laying on top of him for 45 minutes.
[52] The Mother confirmed that she had restrained N. “for his safety” by lying on top of him for 45 minutes.
[53] When Dr. Aldridge asked N. about the flossing incident, he similarly noted that he had threatened to stab himself because he was angry about having to floss his teeth.
[54] In a follow-up session with Ms. Barclay in February, N. stated that he viewed “life as being mean” to him, that it would be okay if he was dead and that maybe he could come back as a different person.
[55] Following this session, Ms. Barclay reported the flossing incident to the CAS. In her view, the fact that a disagreement about flossing escalated into an altercation requiring a 45-minute restraint was concerning in terms of the Mother’s ability to manage N. She also noted that she reported the event because of her concern about the Mother’s repeated pattern of “constant crisis” and the dangerous impact this had on N.’s mental health and him wanting to harm himself. I discuss this impact on N. in more detail later on in the decision.
iv. April 2020 – Another Hospital Visit
[56] On April 7, 2020, in the midst of the outbreak of the COVID-19 pandemic, the Mother took N. to the emergency department of a hospital. N. had some nasal congestion and a sore throat. The Mother also complained to the hospital staff that N. had complained of eye and ear pain and that she suspected COVID. She reported that N. had a spot on his penis and had pain voiding.
[57] Dr. Healey, the emergency room doctor who examined N., testified at this trial. He did not recall the visit but, based on his notes, testified that he observed that N.’s breathing was good, he looked well, and was playing with string. His eye appeared normal. Dr. Healey testified that he diagnosed N. with a viral illness. No medications were administered.
[58] At the request of the Mother, Dr. Healey wrote a note on a prescription pad that states: “Patient needs to be isolated for 14 days. Should not move between multiple households.” Dr. Healey testified that during that stage of the pandemic, self-isolation was a generic recommendation to anyone showing any symptoms of a viral infection. The Mother then sought to deny the Father his scheduled parenting time on the basis that N. should not move between households.
[59] Ms. Barclay, N.’s therapist, also reported the Mother’s visit to emergency during the pandemic to the CAS. As detailed below, Ms. Barclay was of the view that this conduct was harmful to N. Ms. Barclay felt that the Mother was not respecting some of the conditions outlined to the family by the CAS and that this was having “a detrimental immediate and ongoing impact on [N.]’s mental health”.
b. Impact of the Mother’s Conduct on N. – Ms. Barclay’s Evidence
[60] Evidence of the impact of the Mother’s conduct on N. arose from the Father, Ms. Falzon, Ms. Brooks, and Mr. Hurwitz, but most extensively from Ms. Barclay, N.’s therapist.
[61] Ms. Barclay began therapy sessions with N. in August 2019 and continues to act as N.’s therapist. In addition to her viva voce evidence, she prepared a report dated April 3, 2020, and a letter dated April 13, 2020.
[62] As with other professionals, during the Mother’s interviews and conversations with Ms. Barclay, she alleged that the Father’s behaviour towards her and N. was emotionally, financially, physically and sexually abusive. She also alleged that the Father was controlling, incapable of providing appropriate care for N., could not meet N.’s daily needs, and that she feared that he would harm N. The Mother told Ms. Barclay that she was ‘fighting to have [N.]’s voice heard’.
[63] Ms. Barclay’s evidence was that the Mother undermined the therapeutic process and conducted herself in a way that was very harmful to N.
i. Undermining the Therapeutic Process
[64] According to Ms. Barclay, the Mother’s interactions with her were often “of an intense and erratic nature”. She struggled to make therapy a priority despite verbally identifying it as necessary and essential for N. She frequently cancelled scheduled appointments, and then demanded last-minute appointments. One time she showed up with N. at Ms. Barclay’s office without an appointment. Despite being told that the office had a no-pets policy, the Mother snuck her dog into the waiting room under her coat when she brought N. for one of his appointments. The Mother more than once alleged to Ms. Barclay and others that Ms. Barclay was favouring the Father because he was paying for her services.
[65] Ms. Barclay observed that the Mother at times presented in an agitated and heightened emotional state “that had a performative quality”. She was observed in an agitated state in the waiting room: sometimes laughing, sometimes crying, once suddenly running to the bathroom in tears when reading a book. She would attempt to engage N. in a dramatic fashion in discussions in the waiting room about his report card and other private issues, which made N. agitated and annoyed. Ms. Barclay was concerned that N. is exposed to the Mother’s “unregulated approach and emotional state”.
[66] Ms. Barclay reported that the Mother presented audio recordings of N. on more than one occasion and was consistently told by Ms. Barclay (and Ms. Falzon) that audio recording N. was not appropriate.
[67] Ms. Barclay further reported that the Mother undermined N.’s relationship with the therapist in various ways. For example, she messaged to N. that Ms. Barclay (and the Father) could not be trusted. In one session, N. told Ms. Barclay that his mom told him that Ms. Barclay had “breached his privacy” by inviting the Father into a session. N. said that he was not angry about this until his mom told him it was a breach of privacy, but then he got over it quickly.
[68] The Mother’s conduct was all in stark contrast to Ms. Barclay’s experience with the Father, who presented as calm, even and reasonable. He was observed to be patient and clear with N. He demonstrated that he was responsive to any recommendations and N.’s needs. He was able to respect boundaries and the role of the therapist. To Ms. Barclay, other than the negative comments that did not match his affect, N. voiced only positive comments about his father.
ii. Effects on N. – Emotional Distress
[69] Ms. Barclay communicated in her evidence that she was concerned about three main issues: (i) the Mother’s inability to manage N.’s counselling appointments; (ii) the Mother’s continued negative messaging towards N. regarding the Father; and (iii) the Mother’s pattern of magnified responses about N.’s wellbeing.
[70] First, Ms. Barclay was concerned that the Mother fails to ensure that N. attends counselling consistently and regularly. Ms. Barclay concluded that the Mother “has a pattern of being incongruent in her approach to therapy with raising serious concerns with [N.], demanding immediate appointments, and yet not following through with therapy appointments once scheduled.” Despite repeatedly being told that N.’s needs required a more regulated and consistent approach to attending therapy, the Mother appeared to be unable to schedule and maintain regular appointments. The Father, on the other hand, consistently brought N. for his recurring appointments, which allowed for consistency in N.’s attendance.
[71] Second, Ms. Barclay testified at length about the psychological distress N. experiences as a result of the Mother’s negative messaging to him about his father, which is incongruent with his lived experience of his father. When N. did recount historical events of his father’s allegedly aggressive behaviour, his affect did not match the situation. The stories lacked detail or depth, with detached affect.
[72] The concerns raised by the Mother were not in sync with N.’s reported personal experience with his father, which caused him great confusion. For example, N. told Ms. Barclay that he thought it was weird that his mom told him to call 911 if his dad yelled at him, because he did not feel unsafe with his father. N. expressed distress at the confusion and struggled to understand who was telling the truth and who he can believe. Ms. Barclay observed that N. was caught in the “extreme conflict” between his parents. Ms. Barclay concluded that the “chronic negative messaging and fragmenting of [N.]’s experiences is causing his foundation of trust and security with his parents to become eroded.”
[73] Third, Ms. Barclay reported that one of her concerns was that the Mother had a pattern of magnified responses and concerns about N.’s mental and physical health, despite the fact that he appears to be healthy. The Mother’s presentations and concerns were intense and consistently not in line with N.’s reports or experiences.
[74] Ms. Barclay concluded that the Mother pathologized N.’s mental and physical health. This damaged N.’s view of himself. The Mother’s conduct subjected N. to an “unrelenting pattern of crisis and calm” that Ms. Barclay saw as “immediately damaging to [N.]” (emphasis in original). N. vocalized his distress to the point of wanting to stab himself; he views life as unpleasant. N.’s constant exposure to professionals and visits to doctors and hospitals caused him confusion and anxiety around his health and reality.
[75] Ms. Barclay reported that N. was identifying with a view of himself as having mental health issues. This, she opined, was a result of the many professionals involved with him and the Mother’s “exaggerated and hypervigilant” response to his emotions. Per Ms. Barclay, N. was developing a concerning and mistrustful view of the world. He was also coming to believe that he had to express himself in a dramatic light in order to ensure people believe him. He also believed that he is a victim of bullying and that teachers do not like him.
[76] Ms. Barclay concluded that N. is at “serious risk for short term [sic] and long-term mental health consequences and is already demonstrating emotional distress.” She concluded in her April 3, 2020, report that “[i]t is questionable that [the Mother] is able to provide the structure and discipline that is required for [N.] to become a healthy and well-adjusted person. It is imperative that [N.] is not pathologized for his parents’ conflict and lack of appropriate parenting strategies.”
[77] Ms. Barclay, as part of her duty, reported to the CAS her concerns about significant emotional harm to N. resulting from the Mother’s mental health, lack of parenting strategies, inability to consistently follow through with necessary therapeutic intervention, and involving him in parental conflict, putting him at risk of emotional harm.
[78] In a June 2020 letter, the CAS verified that the Mother has exposed N. to post-separation conflict and verified that her mental health could pose a risk to his wellbeing. The Society also verified that the Mother’s response to N.’s mental, emotional and developmental condition places N. at risk of possible harm.
[79] Ms. Barclay maintained her views during her testimony before me. She was unshaken during cross-examination. Her concerns were echoed to some extent by Ms. Falzon and Ms. Brooks of the CAS, and most importantly by Mr. Hurwitz in his clinical findings.
c. Section 30 Assessment - Findings and Recommendations
[80] Mr. Hurwitz conducted a thorough s. 30 assessment. His report is 171 pages in length. He testified that it was “massive assessment”. On a scale of one to one hundred it was “a hundred”.
[81] Mr. Hurwitz made the following clinical findings:
a. The Mother’s interaction with N. during observations was positive. She was “kind, nurturing and attentive to his needs”. She made sure that he was enjoying himself. She takes pride in her role as a mother and is “devoted” to N. She values his education, carefully monitors his homework and is supportive of him doing well at school.
b. N. enjoyed an equally positive relationship with the Father.
c. The Mother is not supportive of N.’s relationship with his father. This is evidenced from her: (i) undermining his parenting time, including violating court orders and being focused on her needs and wants; (ii) talking negatively to N. about his father; and (iii) sharing information with N. that was distorted. This created confusion and uncertainty for N. as the Mother has promoted an image of his father that is one of “caution and fear” and is not congruent to his experience of his father.
d. The Mother has been focused on “demonizing” the Father. She took no responsibility for problem-solving, and her approach was to blame and shame the Father. She talked negatively to various professionals about him, provided information about the marital conflict to the school and posted extremely negative and untrue comments about him on Facebook. She also lied to the family’s pharmacist about having sole custody of N. in order to control refills of his ADHD medication.
e. The Mother wants to parent N. on her own and showed limited capacity to work collaboratively with the Father. She told Ms. Falzon at one point that N. did not need a relationship with his father.
f. After the criminal charges, the Mother insisted that the Father contact her despite being aware that he was prohibited from communicating with her as a result of his bail conditions. Mr. Hurwitz found this to be “most perplexing”, especially given the Mother’s claims of historical abuse. The Mother insisted on communicating with the Father directly in various ways, and then complained that he was deliberately refusing to communicate with her,[^9] so co-parenting with him would never be possible.
g. The Mother contacted the police and CAS repeatedly. Mr. Hurwitz found that this was “most troubling” because it subjected N. to repeated interviews. The Mother’s “zeal in doing so” is harmful to N. as it puts him in the middle of the parental conflict.
h. The Mother was primarily responsible for the conflict with the Father, continually engaging with him in an effort to exacerbate it. This is harmful to N., especially as she then undermines his relationship with his father.
i. The Mother holds deeply distorted views about the Father, behaves in a conflictual manner and involves N. in the parental conflict.
j. Mr. Hurwitz found that the Mother’s allegations of domestic violence and the information she presented to the police, CAS, the school, her therapists and all other professionals involved only escalated post-separation. She did not make these allegations during the marriage. Mr. Hurwitz concluded that it was hard to know what motivated the Mother to make these allegations.
k. The Mother was not open to suggestions Mr. Hurwitz made through the assessment. She was determined to do whatever she wanted to do. This was prescriptive of her capacity to work with other professionals.
l. The Mother’s behaviour had been “paradoxical” throughout the assessment: she often said one thing but behaved in another manner. He cited many examples of this in his report.
m. The Mother was reluctant to complete forms and charts Mr. Hurwitz requested. She cancelled several appointments. Twice during the assessment, she took N. to the hospital and did not notify the Father of this.
n. It was during the course of the assessment that the Mother went to the police to ask them to lay charges against the Father for incidents she had reported to the CAS, involving N., that the CAS had not verified.
o. The Mother interfered with the Father’s ability to refill ADHD medication for N. by telling the pharmacy she had sole custody.
p. The Mother acted unreasonably on a number of occasions with respect to the parenting schedule. There were multiple instances during the assessment when the Mother refused access to the Father or otherwise created a crisis where it need not have happened.
[82] Mr. Hurwitz concluded that the conflict between the parties post-separation was extremely severe, fueled exclusively by the Mother. The parental conflict actually increased during the course of the assessment, which was a poor predictor of the parties’ ability to work together without substantial intervention. Even with the assessor involved, the Mother’s behaviour continued to escalate.
[83] He concluded that if the Mother had sole custody, she would “annihilate” N.’s relationship with his father. He reported and confirmed in his testimony that the risk of parental alienation (“alienation” being a word Mr. Hurwitz used very carefully, sparingly and deliberately) was extremely high.
[84] Mr. Hurwitz concluded that the Father kept N. out of the parental conflict, remaining focused and balanced. The Father is resilient and has strong personal support available to him. He works well with professionals and values their support, whereas the Mother does not. Relying on the psychological testing, Mr. Hurwitz concluded that the Father is a healthy, functioning individual while the Mother is not. He concluded: “It is absolutely evident that these parents are unable to co-parent together because of [the Mother]’s behaviour”.
[85] As a result, Mr. Hurwitz concluded that it was in N.’s best interest that the Father have sole custody/decision-making responsiblity. Given the multitude of concerns about the Mother’s negative influence over N., her parenting time should also be reduced to 5 out of 14 days. He recommended that the Father’s parenting time be increased. The Father had acted in a more child-focussed manner and did not involve N. in conflict. Mr. Hurwitz also recommended a reduction in the Mother’s parenting time because she had indicated and demonstrated difficulties in managing N.’s behaviour and exercised poor judgment in parenting N.
d. Evidence of the Mother’s Personality/Characterological Structure
i. Evidence of Dr. Hy Bloom
[86] In his report, Mr. Hurwitz recommended a psychiatric assessment of the Mother. His major concern was about the presence of a thought disorder or reason for the “major distortion” of information the Mother often presents. Dr. Hy Bloom, a forensic psychiatrist, was retained to conduct the psychiatric assessment.
[87] Dr. Bloom’s evidence was admitted as expert evidence in the field of forensic psychiatry on consent and I found that he met the threshold requirements of admissibility and the potential benefits of admitting his evidence justified any risks: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 23-24. Dr. Bloom assessed the Mother’s mental health and prepared a report dated July 17, 2020. His report contains a detailed history of the Mother’s mental health challenges.
[88] Dr. Bloom diagnosed the Mother with cluster B personality pathology, namely histrionic and pre-eminently borderline personality features. Those traits manifest in heightened rejection sensitivity, emotional dysregulation, rapid changes in mood, some impulsivity and a proneness for melodrama. Dr. Bloom testified that the Mother is at the lower end of the spectrum of this diagnosis, though he conceded that to some extent his assessment was skewed in the Mother’s favour since he had only a very limited time (1 hour) to speak to the Father as compared to the Mother.
[89] Dr. Bloom found that the Mother does not have Borderline Personality Disorder: he saw no evidence of “a pervasive pattern of instability over the course of her lifetime that had led her… to personal distress or psychosocial dysfunctioning” that is a requisite feature for this disorder under the DSM-V. Dr. Bloom concluded that the Mother does not show the persistent pattern of manipulation or self-damaging acts that is typically associated with someone who has Borderline Personality Disorder.
[90] Dr. Bloom testified that there was no evidence that the Mother experienced a psychotic break post-separation. Rather, she experienced a lot of emotions whereby her past was coming to the forefront and merging with the present. This resulted in some distortion and creation of “drama”. He testified that the Mother is very strongly invested in protecting her relationship with N. and shows a tendency to blame others, impulsivity, poor judgment and “a measure of vindictiveness”.
[91] According to Dr. Bloom, the Mother comes by her mental health and personality characteristics “honestly” given her abusive upbringing and several bouts with cancer. Her “early life experience within her family of origin was markedly difficult, complex, and seemingly replete with conflict and abuse.” The Mother developed anger dysregulation. She experiences men in a “dichotomous (idealized versus devalued) way.”
[92] Dr. Bloom reported that the Mother believes that she has been “misunderstood” and that the information about her post-separation conduct has been “misconstrued” and portrays an unduly negative picture of her. She attributes many of the adverse observations to her emotional fragility in the timeframe of various assessments. She conveyed to Dr. Bloom that years of pent-up feelings about her mistreatment by the Father, including his physical, psychological and sexual abuse, emerged in the catharsis of her sessions with Mr. Hurwitz and Dr. Fitzgerald. In the end, based on the totality of the information available to him, Dr. Bloom was left with concerns about the Mother’s reliability.
[93] In his report, Dr. Bloom concluded that there could be a number of reasons for the Mother’s “presumptive rage” towards the Father. These included feelings of rejection and abandonment, deeply held resentment arising from her experiences of cancer and infertility and lack of sexual intimacy during critical years of the marriage. Her ongoing beliefs about the Father’s alleged aggression and moral turpitude are likely distortions of facts and information to help her justify her own actions, words, and view of him. Her behaviours, as well as the various distortions of information and unrestrained emotion, likely reflect her underlying personality vulnerability.
[94] In the end, Dr. Bloom shared the views expressed by Dr. Fitzgerald and concluded that “the bulk, if not entirety, of problematic behaviours [the Mother] has engaged in both in respect of issues to do with their marriage and its dissolution reflect cluster B personality pathology” (citations omitted, emphasis removed).
[95] Dr. Bloom was careful to express that the diagnosis does not impact the Mother’s ability to be a good mother or to care for her child. Rather, it plays out in key relationships with family or a domestic partner, in this case the Father. Her personality traits mean that the Mother is inherently more volatile and experiences more severe emotional dysregulation. She has self-esteem issues and, like other trauma survivors, recreates circumstances that are painfully reminiscent of her early life. She employs frantic efforts to avoid real or imagined abandonment. Dr. Bloom testified that the Mother’s insight into herself and how she has been operating is limited.
[96] In cross-examination, Dr. Bloom agreed that persons with Borderline Personality Disorder or features can have problems with attachment with their child. A problematic attachment style will affect the child’s mental schema and structure of their personality.
[97] The Mother testified that she accepts Dr. Bloom’s diagnosis. She testified that she was prepared to take treatment in accordance with his recommendations. That treatment includes Dialectical Behavioral Therapy (“DBT”). This therapy is a “spin off” from Cognitive Behavioural Therapy (“CBT”), which encourages one to challenge their own thinking process in order to lead to changes in behaviour and thinking. Dr. Bloom testified that the Mother would continue to require therapeutic support for some time. Typically, DBT programs tend to be 12 months or more.
[98] Dr. Bloom testified that the Mother’s resilience and motivation were the two most important factors that would allow her to benefit from this therapy. However, she would need mental health supervision for the foreseeable future, including support, DBT and individual psychotherapy. It would take more than months, more than years, and he did not know if it would take less than decades. Dr. Bloom testified that the Mother would also benefit from a parenting program.
[99] At the time of the trial, the Mother commenced a nine-week DBT program which was approved by Dr. Bloom in advance. She also planned to continue to engage with a counsellor at Thrive, a local counselling program for victims of intimate partner violence. She was looking for a psychotherapist.
[100] Dr. Bloom opined that the Mother’s statements that she has forgiven the Father and was looking forward to a “peaceful existence and to co[-]parent with him” should not be taken at face value. He testified that she has not “gotten over it” and that it needs to be monitored and risk-managed. Given all of the dimensions, Dr. Bloom agreed that it is likely that there would be a potential sequel to this and more “storms to weather”.
ii. Evidence of Dr. Daniel Fitzgerald
[101] Dr. Fitzgerald conducted psychometric testing of both parties as part of the s. 30 assessment. His direct evidence was in the form of his Psychological Report dated January 27, 2020. He administered several psychological tests in order to gain an understanding of the parties’ cognitive ability, personality profile and understanding of parenting issues.
[102] One of the tests was the standardized Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV). This test showed that the Mother’s overall intellectual ability was in the average range, at the 45th percentile. However, her working memory was in the very low range for someone her age (5th percentile). This reflects that she could have significant difficulties acquiring new information and retaining it, which can interfere with her ability to integrate new information into an established schema.
[103] According to Dr. Fitzgerald, the Mother’s personality function suggested that she has a “strong need for attention and approval from others.” In addition, “[s]he seeks to project an image of self-righteousness and having a high purpose. If she is not successful in obtaining the attention and approval she needs, she will escalate her efforts until others find it necessary to respond.” She has a propensity for “drama”. Dr. Fitzgerald opined that the Mother has a narcissistic personality style and histrionic temperament; “she tends to be someone who seeks to be the centre of attention and has a tendency to behave in an emotionally reactive manner rather than behaving in a way that is focused on solving problems and achieving long-term goals.”
[104] In his report, Dr. Fitzgerald observed that the Mother’s assertions that she suffered a great deal of abuse and maltreatment during her marriage were not borne out by the testing. In cross-examination, Dr. Fitzgerald testified that an individual who has experienced trauma has a series of symptoms that would usually show up in the test results. These symptoms did not show up for the Mother. He would not say that he was looking at person who had experienced trauma. Test results also did not detect the presence of any significant mood disorder.
[105] Dr. Fitzgerald concluded that he doubted the Mother’s ability to effectively co-parent, given the level of acrimony and anger towards the Father she expressed. Dr. Fitzgerald was “struck” by the persistently negative tone that the Mother used to describe their 17-year marriage. Throughout the assessment she spoke of the Father in very derisive and disparaging ways. She described him as being a chronically abusive husband and father. She had gone to the police to lay charges against him and also made allegations about his abusive behaviour to child protection services. Dr. Fitzgerald testified that he thought she was unlikely to be able to co-parent because he did not believe that it was in any way settled or calmed down.
[106] In contrast, Dr. Fitzgerald found that the Father “does not show evidence of serious psychological disturbance.” Instead, the Father “displayed a good deal of emotional sensitivity and demonstrates the capacity for empathy towards others.” With respect to the Father’s ability to co-parent effectively, Dr. Fitgerald noted that “[t]here are good indications that he would be able to do so”. Finally, with respect to the Father’s ability to safely take care of N., Dr. Fitgerald concluded that there were “no indications of personality traits that would present a safety risk” or that could impact the Father’s ability to parent N.
[107] In sum, Dr. Fitzgerald found that the Father was not displaying any “worrisome personality traits”, but rather was empathetic and concerned about the Mother’s wellbeing, with no anger or resentment.
e. Evidence of Dr. Aldridge
[108] I had no concerns about the credibility or reliability of Dr. Aldridge, but ultimately I did not find her evidence to be helpful in resolving the issues in this case. First, she had not read the reports of Mr. Hurwitz, Dr. Bloom or Dr. Fitzgerald. Second, she had very litte contact with the Father. Third, Dr. Aldridge candidly acknowledged that all of her information came from the Mother and that, as her physician, she took the Mother at her word unless there was some contrary indication. Dr. Aldridge testified that she really had very little way of knowing whether what the Mother told her was true.
f. The Mother’s Evidence
[109] The Mother did not deny most of the post-separation events. She admitted much of her post-separation conduct. For example, she admitted that she recorded N., and that she told him not to be surprised if the police show up when he is at the Father’s house to make sure he was safe. She admitted that she told N. to lock himself in a room and call 911 if he felt unsafe, and to tell her if the Father introduced him to anyone. She admitted that she had badmouthed the Father to N. and others and explained that and her other negative conduct by saying that it was “a very volatile time” or a “tumultuous time”.
[110] She maintained that she had put her animosity towards the Father behind her and that she was now ready to co-parent. She explained her present state of mind by saying “the past is the past and must stay in the past” and that “it was a different time”. To explain her post-separation conduct, she stated that she had a story to be told and wanted her voice to be heard. Now, she claimed, she wants to move forward in a peaceful way. She stated that she had needed time to process and heal, but in the end, she did not feel that any of her parenting behaviours are problematic.
[111] In cross-examination, the Mother testified that the Father’s role in N.’s life was very important: “huge”. At the same time, she did not retract her negative view of him. Rather, she maintained that the Father had “changed”. She maintained that she left home for her and N.’s safety. She maintained that the historical incidents of abuse she had reported in fact occurred, but that she had simply decided to “let go”.
[112] The Mother denied that she told N. about the historical physical incidents of abuse she had reported. She maintained at trial that something “triggered” N.’s memories of that abuse and that he told her things he remembered. (This was contradicted by Ms. Barclay, Mr. Hurwitz and the CAS investigations: they testified that N. told them that the Mother told him or reminded him of those events).
[113] With respect to the allegations of sexual abuse she had leveled against the Father, at one point the Mother testified that she no longer believed that he was capable of it. She was asked in cross-examination about her statement to Dr. Bloom, in response to Dr. Bloom’s question to her about whether she thought the Father was a pedophile. She responded as follows:
In the moment that we were talking, and I remember this, at the time I did say, "I don't know who he is", and I continued to say, "I know that he's not a pedophile, but I don't know what, what kind of person he is" because of all the things that happened beforehand.
[114] She also testified that “at that time there was, was a lot going on in our lives. There was a – again, it was a very tumultuous time, and I was hearing my son’s statement, these things were coming from him. My only agenda was to ensure that he was safe”.
[115] Although the Mother presented as having a good recollection of all the various events, she claimed a selective inability to recall key facts, like telling the CAS that N. did not need a relationship with his father. To explain her email to Ms. Falzon in which she referred to the Father as devoid of empathy, especially toward N., the Mother testified that her description of the Father in those terms was a “snapshot” of what he was like during their marriage.
IV. LEGAL FRAMEWORK
a. Best Interests of the Child Test
[116] Notwithstanding recent legislative changes, there is no dispute that the test to determine decision-making, primary residence and parenting time is the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1); CLRA, s. 24. The best interests test is the only test to be applied. Parental rights, interests and preferences play no role in this determination: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.
[117] Prior to the recent amendments, s. 16(10) of the Divorce Act required the court to give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 24 [Gordon]; Young, at pp. 117-118.
[118] In s. 16(6), as amended, the heading of “maximum contact” has been removed from the provision, but the wording remains essentially the same:
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
In my view, this change in the wording of the legislation has no impact on the adjudication of the issues between these parties. It has long been established that each case turns on its own unique circumstances. The only issue is the best interests of the child in the specific circumstances of the case. Maximum contact does not – and did not - necessarily mean equal contact: Young, at pp. 44, 52.
[119] The newly enacted s. 16(2) of the Divorce Act explicitly requires that a court’s assessment of the best interests of the child give primary consideration to a child’s “physical, emotional and psychological safety, security and well-being.” The factors to be taken into account to determine a child’s best interests under the Divorce Act mirror those that are set out in s. 24 of the CLRA.
[120] Section 16 of the amended Divorce Act provides that:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[121] The list of factors contained in section 16 of the Divorce Act and section 24 of the CLRA is not an exhaustive list of considerations. All of the factors relevant to the specific case must be considered: Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284, at para. 74; Scott v. Chenier, 2015 ONSC 7866, at para. 19. The court’s assessment of the best interests of the child is to be a holistic one: S.S. v. R.S., 2021 ONSC 2137, at paras. 30-36. Ultimately, the best interests of the child are paramount to the determination of decision-making responsibility, principal residence and parenting time.
b. Section 30 Assessment Report
[122] The views and conclusions expressed in a report completed pursuant to s. 30 of the CLRA are not binding on a court. The court must not abandon its decision-making role to an assessor and is under no obligation to accept the report or the recommendations of a clinical investigator or assessor: D’Angelo v. Barrett, 2016 ONCA 605, at para. 8; Knapp v. Knapp, 2021 ONCA 305, at para. 20. Rather, it is for me, as the trial judge, to determine the best interests of the child. A s. 30 assessment is simply evidence, albeit important evidence, in this regard. It is for the trial judge to determine what weight to give the findings and recommendations of the assessor.
[123] At the same time, as long as the facts underlying the clinical findings of the assessor are not contested, they can be relied upon by the trial judge: Knapp, at paras. 23-25; X v. Y, 2016 ONSC 545, at paras. 66, 70; J.K. v. W.R.N., 2016 ONSC 3179, at para. 106.
c. The Mother’s Conduct
[124] Pursuant to s. 16(5) of the Divorce Act, a party’s conduct is irrelevant “unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.” In Gordon, at para. 21, the Supreme Court noted that parental conduct “does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.” In this case, I consider each party’s conduct only to the extent that it is relevant to their ability to parent and meet N.’s needs.
V. ANALYSIS and findings of fact
a. The Expert Evidence
[125] On the parenting issues, I accept the recommendations of Mr. Hurwitz. I do this having carefully reviewed his report in the context of all the evidence adduced before me. Mr. Hurwitz is exceptionally qualified in this area and his report, as I have indicated, is exhaustive. Most significantly, I found that the factual underpinnings for his opinions and recommendations were entirely supported by the evidence in this case.
[126] In this case, there was no dispute that Mr. Hurwitz is an expert in section 30 custody and access assessments, high-conflict family disputes and parental alienation and other parental-child contact problems. Neither party took serious issue with the facts and clinical findings in his report. In the end, having regard to all of the other evidence at this trial, I accept the findings and recommendations made by Mr. Hurwitz.
[127] The Mother’s position, however, was that the events that had led Mr. Hurwitz to his conclusions were in the past, that she had put her acrimony behind her and that she was prepared to co-parent going forward. For the reasons set out below, I do not accept her evidence in this regard.
[128] Having carefully reviewed the record, I find that there was ample evidence to support Mr. Hurwitz’s conclusion that this was a high-conflict case, in which the Mother’s conduct resulted in emotional harm to the child. I also find that if the Mother had decision-making responsibility or equal parenting time, she would use it to perpetuate the conflict with the Father, continue to involve N. in that conflict and continue to undermine N.’s relationship with his father.
[129] In addition, Dr. Bloom’s forensic psychiatric assessment is very helpful in explaining the Mother’s conduct and views. As Dr. Bloom observed, the Mother came by her personality traits “honestly”. The mere fact that she has this personality construct or that she suffers from any mental health issues is not in and of itself a reason for finding that she is not or could not become a loving or capable parent.
[130] Rather, the concern is that by reason of her personality and current lack of insight, the Mother will continue to engage in conflict with the Father, and other behaviour that is harmful to N. On this point, Dr. Bloom opined that without a doubt, she would. He testified that it could be that she has not “exhausted the venom” that she feels towards the Father. The Mother continues to view herself as an aggrieved and victimized individual. Given evidence that the Mother’s feelings about the Father are “totally contrary” to her concessions that he is a good father or a good person, Dr. Bloom opined that she continues to have lots of misgivings about the Father. Those misgivings need to be addressed in a therapeutic setting.
[131] I accept Dr. Bloom’s findings. His evidence was not seriously challenged in any way. In the context of all of the evidence, Dr. Bloom’s findings make a lot of sense. His diagnosis that the Mother has cluster B personality features was also consistent with Dr. Fitzgerald’s clinical findings (which were not challenged and which I also accept).
[132] Based on this evidence, viewed in the context of the evidence as a whole, I conclude that the Mother’s anger towards the Father flows deep, and that it will require true determination on her part and a genuine intention to change herself (as opposed to others) over an extended period of therapy to address and resolve. As I set out below, I do not accept her evidence that this change has occurred.
b. The Father’s Evidence
[133] I accept the Father’s evidence as to the Mother’s conduct post-separation and its impact on N. His evidence as to those events was supported by the CAS records as well as the testimony of the two CAS workers. His evidence was also supported by the evidence of Ms. Barclay, and the reams of emails, OFW messages and other communications from the Mother to him and others adduced before me.
[134] When he testified, the Father was genuine, forthright and balanced, both in his evidence in chief and during cross-examination. His evidence was logical, consistent, detailed and specific. He answered questions put to him and did not evade questions. His evidence was not seriously challenged or undermined during cross-examination.
[135] I conclude that the Father is genuinely focused on N.’s best interests and well-being. He is also quite justifiably concerned with the Mother’s conduct and the impact of her behaviour on N. in the past, present and future. He has demonstrated that he cooperates with and takes the advice of the professionals involved with N. These conclusions are supported by the evidence of all the professionals involved with this family.
c. The Mother’s Evidence
i. Overview
[136] I do not accept the Mother’s evidence that she has put her acrimony towards the Father behind her and that she will co-parent with him in the future. Her evidence in this regard was neither credible nor reliable. The Mother’s evidence that her difficulties with the Father are now in the past was not supported by any of the professionals involved with this family or the narrative of the relationship as it was revealed to me in this trial.
[137] The evidence as to the events that took place is not significantly disputed by the Mother. Rather, she sought to explain or justify her conduct and persuade the court that such behaviour was behind her. She asserts that it was in the past and that she is now in “peaceful” state of mind ready to co-parent with the Father. I do not accept her evidence in this regard.
[138] I have concluded that the Mother’s statements at trial, that she now views the Respondent as a good father and supports his relationship with N., are not credible when measured against the history of her approach to parenting to date. Her conduct for the year and a half preceding the trial, as well as her many statements to the contrary to various professionals and in her correspondence and messages fundamentally belie her claims at trial.
[139] While the Mother insisted that her version of the past was accurate, she also maintained in her evidence that she now had no concerns about Father. This does not make sense. Even so, she could not bring herself to acknowledge that she trusts him. I find that she does not trust him.
[140] When she described a historical incident of the Father breaking down a door and yelling at her and N., the Mother was very dramatic. Her evidence presented as rehearsed or scripted. I had the impression that, like an actress, she was performing a set piece that had been rehearsed by her many times rather than testifying. It was entirely incredible. In almost the same breath, she maintained that she agreed with Mr. Hurwitz and Ms. Barclay, who said that the Father was a very good father.
[141] The Mother’s evidence revealed her lack of judgment. For example, she admitted that she told N. that if he was scared at the Father’s house to lock himself in a room and call 911. She claimed that she did this as part of a “security plan”. She admitted that it did not occur to her that this could have a negative impact on N. Rather, she testified that at the time she “did not know [her] husband” and that “[i]t was a different time”.
[142] Ultimately, I cannot accept the Mother’s claim that her hostility towards the Father is now behind her and that she is able to move forward and co-parent in a peaceful way. I found the Mother’s evidence to be incredible and unreliable.
[143] I find that the Mother’s post-separation conduct was harmful to N. I accept the evidence of Mr. Hurwitz, Ms. Barclay, the CAS workers and the Father in this regard. Their evidence as to the harm experienced by N. is also supported by the evidence of Dr. Aldridge and Ms. Falzon.
[144] Dr. Aldridge described N. as an active and sensitive child, who easily experiences distress. He has difficulty attending to his own physical needs. He feels deeply and responds with a lot of emotion. Ms. Barclay testified that N. is a “concrete” thinker: he tends to think in “black and white” and has difficulty with nuances. Ms. Falzon testified that by reason of his adoption, N. was likely to experience grief and trauma associated with divorce more acutely.
[145] I accept that N. suffers from ADHD and that there are certain emotional and behavioural traits that go along with that diagnosis. I also accept the Father’s and Ms. Barclay’s evidence that, as a dysregulated individual herself, the Mother does not deal with N.’s dysregulation well. Her tendency, as shown by a number of the incidents including the “flossing” incident, is to overreact, thus spinning the situation out of control.
[146] I also find that the Mother has little, if any, insight into the harm she has caused N. and the potential for harm from any future conflict. Her insistence at trial, in the face of all the evidence, that there are no issues with her parenting is astounding. As a result, I find that there is a real risk of her perpetuating the conflict and of the harmful behaviour reoccurring.
ii. Post-Separation Conduct
[147] I accept that the Mother is a loving and engaged mother. There is no doubt that she loves N., and that N. is closely bonded with her. Her interactions with him were observed to be that of a loving and engaged parent. Mr. Hurwitz testified that her parenting per se is not problematic, and that she provides a structured and positive home environment for N. She is encouraging and responsive to him. She is playful. I accept all of this to be true.
[148] In her evidence, the Mother did not deny much of the conduct that was attributed to her. Rather, she sought to explain it or justify it in various ways. She testified that these events were in the past; they were part of “a different time”. Ultimately, for the reasons set out, I did not accept her evidence or justifications.
iii. Ability to Co-Parent
[149] The Mother maintained that she was prepared to move forward and co-parent with the Father. As set out above, her evidence is contradicted by several experts as well as the overwhelming evidence of egregious post-separation conduct. But even in the absence of that evidence, I would not accept the Mother’s claims in this regard.
[150] I found the Mother’s evidence that she was prepared to or capable of co-parenting N. with the Father incredible and unreliable. I concluded that her expression that for her the past is now behind her is wishful thinking. While she may honestly express a desire and maybe even hold an intention to be a functional co-parent, I do not believe and cannot rely on her evidence that she is capable of it.
[151] Her evidence is fraught with internal contradictions. These contradictions show that there is a real schism – an irreconcilable conflict – within her. On the one hand, she desperately wants to fully parent her son. Faced with the threat of losing her ability to do so, she appears prepared to say or do anything it takes to convince the court, and herself, that she has put the past behind her. At the same time, she holds on to her beliefs about the Father and attempts to justify her past conduct and accusations against him. At times, her thinking seemed distorted. This irreconcilable deeply-ingrained conflict is readily apparent in her evidence.
[152] She impressed me as a loving, engaged and devoted mother to N. There is no question in my mind of her love and affection for her son. At the same time, even in the absence of any other evidence, I do not believe her claim that she can or has abandoned her open hostility towards the Father. She remains unable to accept that the Father should or could co-parent N. Her statements to the contrary, on their own, were simply unreliable. When considered in context of the evidence as a whole, they were even more so incredible and patently unreliable.
[153] The Mother testified in a dramatic style. Many times, she appeared to be acting as if for a camera. I do not place any weight on her demeanour, but I do note that this was my impression.
iv. Conclusion
[154] The Mother appeared to be trying very hard to convince herself, and this court, that she is in fact a “friendly parent” with full confidence in the Father’s parenting and a trustworthy candidate for future co-parenting: see Young, at p. 44; s. 16(3) of the Divorce Act. However, her evidence at this trial perfectly reflected the paradoxical thinking and conduct that was remarked upon by Mr. Hurwitz in the s. 30 assessment. In his view, while the Mother expresses that she wants a peaceful co-existence with the Father, she cannot actualize it.
[155] The credibility of the Mother’s claims, positive statements about the Father as a father and purported acceptance of the professionals’ recommendations are undermined by: (i) her many emails to and conversations with the CAS and the Father’s lawyers, as recently as June 2020; (ii) recent evidence that she continues to see the Father in a bad light; (iii) her unilateral actions leading up to the trial; (iv) recent evidence that she continues to involve N. in the litigation or conflict; and (v) the Mother’s refusal to acknowledge that her difficulties parenting were connected to her mental health struggles.
[156] After the release of the s. 30 assessment, and right up to the trial, the Mother continued to hold a negative view of the Father and to engage in conflict.
[157] First, the CAS contact logs show that the Mother recently[^10] contacted the CAS and said the following:
a. Email from the Mother to CAS dated April 13, 2020: “I explicitly refute all the claims made by Ms. Barclay and its apparent that Ms. Barclay can no longer be an effective therapist for [N.] and no longer hold an unbiased viewpoint…” The Mother goes on to state that Ms. Barclay’s letter shows Ms. Barclay to be “conniving and plotting”;
b. May 8, 2020: the Mother told the CAS worker that the Father was abusive and still tries to control her and that, because he has access to more resources than she does, she feels that the assessments were not accurate and favour him;
c. May 12, 2020: the Mother told the CAS that the Father was “very controlling and abusive to her throughout their marriage… there was a lifetime of control…she did not realize who she married.”
d. May 12, 2020: the Mother told the CAS that there were errors in Ms. Barclay’s report and in the s. 30 assessment, that Mr. Hurwitz made mistakes in the report and recorded facts incorrectly and that there is a series of inconsistencies.
e. June 11, 2020: in an email to CAS, the Mother said: “It is clear, [the Father]’s only desire is to have control of [N.] and not actually care for his well-being, otherwise, none of this would have occurred.”
f. June 23, 2020: the Mother told the CAS that she feels that the Father “played” her, that she is in a post-separation abuse situation and that he is trying to make her destitute and look mentally ill.
g. June 23, 2020: the Mother told the CAS that she was disappointed in the Society’s decision to close its investigations, she does not agree with some of the facts in the s. 30 assessment, she does not agree with the findings of the reports, and that Ms. Barclay’s report is flawed with inaccuracies. When asked, she did not have an answer for why none of the professionals who assessed the situation did not support her view.
[158] Second, the Mother also sent emails to the Father’s lawyer in September 2020. In those emails she accused the Father of making “an irresponsible decision”, accused him of deliberately isolating N. from communicating with her, accused him of holding a cavalier attitude towards N.’s health, and threatened to call the police if counsel does not reply to her within a certain time. I agree with the Father’s submission that these emails show that the Mother’s impulse is to continue to jump to highly negative assumptions about the Father.
[159] Third, the Mother sent the following message to the Father’s stepmother on June 28, 2020:
Perhaps it is best we do not communicate because the mother in law that was my friend and I loved dearly would be asking [the Father] for compassion for [N.]’s sake./ [sic] [The Father] doesn’t think about the day when [N.] will be older, and he will know the truth. I am begging you [the Father’s mother] – I just want peace. I want to move on with my life. I want that for [the Father] too, but it can’t happen with his constant attacks. He needs to put in practice all his Buddha lessons and let go.
[160] In my view, this was a most telling message. It shows that the Mother continues to hold a distorted view of the “truth” about the Father. More importantly, she confirms her ongoing tendency to want to engage N. in the conflict by threatening to reveal that “truth” to N.
[161] As recently as October 12, 2020, the Mother suggested that N. did not want to transition into the Father’s care. N. was picked up by the Father’s stepmother and father (N.’s grandfather). According to the Father, the grandparents noticed that the Mother kept N. in her car for an extended time. After the transition, the Mother began texting the stepmother to say that “it was extra hard for [N.] to go back” and “he was quite upset when I dropped him off”. To the grandparents, N. seemed happy and excited to be with them.
[162] In light of these recent expressions by the Mother, her claims at trial that she now has a positive and “peaceful” frame of mind towards the Father is wishful thinking. More likely than not, she has attempted to embrace this new attitude in response to the recommendations of Mr. Hurwitz. Those recommendations were devastating to her. Despite her intention expressed in her evidence to be a “friendly parent”, I am not satisfied that she can be. The evidence unmistakably reveals that she continues to hold the same views she did post-separation, though now perhaps more cautiously and timidly displayed.
[163] Fourth, the Mother also continued to make unilateral decisions right up to the time of the trial. For example, in September 2020, without consulting the Father and, contrary to her earlier agreement with him, she stated that she would withdraw N. from in-person schooling due to increased incidents of COVID-19 in the community. At the time, the Father had sole decision-making authority for health-related decisions.
[164] The Mother’s evidence at the trial demonstrates her inability to cooperate with the Father with regard to education and religion. In her affidavit, sworn just prior to trial, the Mother indicated that she wishes for N. to change schools and attend school in Hamilton. She had not discussed a change in schools with the Father. At trial, she testified that she discussed first communion with N., but had not discussed that with the Father either.
[165] Finally, and most significantly, the Mother did not at any point in her evidence acknowledge that her personality or mental health may have impacted her approach to the separation or her parenting. Despite the various opinions of the professionals involved in this case, the Mother claimed in her evidence to be a healthy and capable parent. She attempted in various ways to justify her unacceptable conduct. In the end, the Mother showed no insight into how troubling her post-separation conduct has been or its potential impact on N.
[166] A party’s mental health is not a bar to equal parenting: Marrello v. Marrello, 2016 ONSC 835, at paras. 124-131; Borsfai v. Hyde, 2015 ONCJ 117, at paras. 163-166. In this case, the Mother’s mental health per se is not a bar to equal parenting. However, I am unable to find that the Mother’s post-separation actions were “reflective of her actions during a very specific period of time” or that her mental health crisis is behind her, insofar as it directly impacts on her ability to meet N.’s needs.
[167] In sum, on her evidence alone, I am not satisfied that the Mother could or would co-parent N. with the Father. She continues to view the Father as a bad parent and an abuser. The evidence of all of the professionals involved with this family supports this conclusion. I concluded that the Mother’s evidence that she has put the past behind her and is prepared and able to co-parent with the Father is not credible or reliable.
VI. IS AN ORDER FOR PARALLEL DECISION-MAKING IN N.’S BEST INTERESTs?
[168] I do not accept the Mother’s argument that a parallel decision-making order is in the best interests of N. Ultimately, having carefully considered her claims in the context of her evidence as a whole, and the balance of the evidence in this trial, I have rejected her evidence that she could successfully co-parent N. I reached these conclusions mainly for three reasons.
[169] First, her post-separation conduct was egregious. As Mr. Hurwitz observed, it included all of the hallmarks of a high-conflict separation, fuelled exclusively by the Mother. The evidence of the Mother’s conduct was overwhelming, and largely undisputed by her.
[170] On the evidence before me, I find that the Mother’s post-separation conduct included the following:
a. Alleging that the Father physically, emotionally and sexually abused N. None of these allegations were substantiated. The result of making these allegations was that N. was needlessly interviewed by various agencies a multiplicity of times;
b. Alleging domestic violence, including sexual assault. These allegations were investigated by the police. Criminal charges were laid against the Father, but not substantiated. The charges were withdrawn by the Crown;
c. Adult “mental health behaviours” by the Mother;
d. A refusal by the Mother to involve the Father in parenting;
e. Interference by the Mother with the Father’s parenting time, or threats to interfere with the Father’s parenting time;
f. Directly involving N. in the parenting conflict;
g. Unnecessarily and repeatedly taking N. to doctors and hospitals to highlight concerns that were not there. This included alleging that the Father was drugging N., and subjecting N. to unnecessary drug testing as a result;
h. Unilateral parenting;
i. Scrutinizing N.’s statements for signs of sexual abuse;
j. High level of anger directed by the Mother towards the Father;
k. High levels of legal involvement post-separation;
l. Refusing to accept the recommendations of various professionals; and
m. A worsening of the conflict during the course of the assessment.
[171] Sadly, the Mother’s conduct often showed complete disregard for N.’s well-being. I find that she lacks any insight into the harm or potential for harm that her behaviour caused N.
[172] Second, the expert evidence of Dr. Bloom and Dr. Fitzgerald support Mr. Hurwitz’s conclusions that the Mother’s harmful conduct is not behind her. Rather, her behaviour is driven in part by her personality or character structure. She would have to change her core perceptions and attitudes before she could or would perceive and react to external circumstances differently. Until then, she is likely to remain in “war mode”.
[173] Third, the Mother’s evidence that she had put her acrimony towards the Father behind her and was finally prepared and able to co-parent with the Father was not credible or reliable. Her evidence is internally inconsistent. As set out above, it demonstrated the “paradoxical thinking” observed by Mr. Hurwitz. Her conduct right up to the trial confirms that her internal schism is ongoing: on the one hand, she states an intention and perhaps holds a genuine desire to work cooperatively and peacefully with the Father to co-parent N., but on the other hand she holds on to deep-seated and distorted negative perceptions of him as a bad parent and an abuser. This makes co-parenting impossible.
[174] I accept Mr. Hurwitz’s finding that, in contrast, the Father has kept N. out of the parental conflict and managed to stay balanced and child-focussed despite the enormous stress and serious allegations leveled against him by the Mother. He demonstrated that he works well with professionals and values their support. As Mr. Hurwitz found, the Father is a healthy, functioning individual while the Mother is not.
[175] In addition, parallel parenting orders will not meet the best interests of the child where the conflict between the parties makes such an order unworkable: Graham v. Bruto, 2007 CanLII 4867 (Ont. S.C.), at para. 65, aff’d 2008 ONCA 260, at para. 2; V.K. v. T.S., 2011 ONSC 4305, at para. 96. One category of decision-making may conflict with another and the ability of the parents to navigate these conflicts or “spillover effects” must be considered before such an order is made: G.S.W. v. C.S., 2018 ONCJ 286, at paras. 116-117.
[176] I find that there is a risk of escalating conflict in this case because of the “spillover effect” that will likely arise if I were to make a parallel parenting order. The potential for conflict between medical and educational decision-making is particularly acute here because N. has ADHD – a medical condition that affects the way he learns. I am of the view that the Mother would continue to use “educational” decision-making as an opportunity to continue to exert control over N.’s ADHD treatment.
[177] Such conflict in areas of arguable “overlap” has already occurred. In September 2020 – a month prior to the trial – the Mother wrote to the Father’s counsel and insisted that she have complete control over whether N would attend school in-person. She wrote:
Your statement regarding [the Father] having medical decision making has no bearing on [N.]’s education. This is a joint area at this time and will be treated as such.
I have decided that [N.] will be attending in class [sic] schooling and I reserve the right to make adjustments should his environment change.
At the time she wrote this, the Mother did not have decision-making resposibility over education.
[178] I find that the Mother has demonstrated a complete inability to co-parent. In the face of a court order, I do not expect that she will be able to disengage and suddenly become a “low conflict, cooperative parent[ ]”: Philip Epstein & Lene Madsen, “Joint Custody with a Vengeance: The Emergence of Parallel Parenting Orders” (2004) 22 C.F.L.Q. 1.
[179] The evidence in this case overwhelmingly supports the recommendations of Mr. Hurwitz that the Father have sole decision-making responsibility and primary residence with respect to N. For these reasons, I concluded that a parallel decision-making regime is not in N.’s best interests. It is in N.’s best interests that the Father have sole decision-making responsibility.
VII. IS EQUAL PARENTING TIME IN N.’S BEST INTERESTs?
[180] The starting point in assessing a child’s best interests is to ensure that the child will be physically, psychologically and emotionally safe. The goal of maximum contact is not absolute and exists to serve the best interests of the child, not to trump them. There is no presumption in favour of equal contact: Young, at pp. 44, 52; Gordon, at para. 24; V.S.J. v. L.J.G. (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), at paras. 122-127.
[181] The value of maximum contact includes “the opportunity on the part of the child to know that parent well and to enjoy the benefit of those attributes of parenthood which such person has to share”: Young, at p. 118. However, maximum contact does not mean, and has never meant, equal contact. Equal parenting time is not appropriate where the “access parent” tends to be controlling, over-bearing and disrespectful of the custodial parent: B.V. v. P.V., 2012 ONCA 262, 19 R.F.L. (7th) 292, at paras. 17-18.
[182] I accept the findings that, outside of her hostility to the Father, the Mother is an engaged, loving and devoted parent. I accept that N. is closely bonded with the Mother.
[183] Despite this close bond, equal parenting time is not appropriate in this case because of the various factors I have outlined.
[184] Additionally, Mr. Hurwitz testified that there was significant risk of parental alienation in this case. I accept his evidence and findings in this regard. I reject the Mother’s submission that because N. is bonded with both parents, I can infer that there has not been an attempt at alienation by the Mother.
[185] The hallmarks of (at least attempted) alienation in this case are striking. The approach to alienation by professionals and the court, as Mr. Hurwitz suggested in his evidence, must be preventative. Alienation is a form of emotional abuse. Just as any other form of abuse, an after-the-fact response is too little, too late. The Final Order proposed by the Father, in accordance with Mr. Hurwitz’s recommendations, is in part intended to prevent the Mother from alienating N. from his father.
[186] Parental alienation is a form of emotional abuse with potential long-term negative impact on children and must therefore be one of the primary considerations in determining the best interests of the child: CLRA, s. 24(2). Alienating behaviour may include conduct that involves, among other things: badmouthing, limiting contact, creating the impression that the other parent is dangerous, providing the child with information that is personal or which relates to the litigation, interfering with communication, and withholding medical, social, academic information from the targeted parent:[^11] Fielding v. Fielding, 2013 ONSC 5102, 39 R.F.L. (7th) 59, at paras. 136, 165; M.P.M. v. A.L.M., 2020 ONSC 1862, at para. 294(e).
[187] As noted by Mr. Hurwitz, parental alienation is a real concern in this case. I find that the Mother has engaged in all of the conduct itemized above.
[188] The Mother relies on the decisions of Kristjanson J. in Liu v. Huang, 2018 ONSC 3499, and Chiappetta J. in J.K. v. W.R.N., 2016 ONSC 3179, for the proposition that maximum contact and equal parenting could be appropriate despite egregious conduct by the parties towards each other during separation. I accept that this may very well be the case in many circumstances, but I am of the view that it would not be appropriate here. Her post-separation conduct directly involved and impacted N. and threatens to continue to do so.
[189] In making an order for an unequal division of parenting time, I took into account that this change in the parenting schedule might seem like a disruption for N. Stability is one of the factors that is very important to a young boy like N. His need for stability is one of the factors that must be balanced against the others.
[190] At the same time, there is no presumption in favour of the pre-trial status quo. Any status quo is a factor to be weighed in determining the best interests of the child. The status quo that is ordinarily maintained is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictate otherwise. Parenting arrangements on a without prejudice basis do not establish a status quo.
[191] In this case, I concluded that the change in the schedule from a 50/50 or 7 out of 14 days to 5 out of 14 days is a small change. While it is a change, and might be a little disruptive at first, I am satisfied that such a change is warranted and is in the best interests of the child. Over time, I am satisfied that it will contribute to greater stability for N.
[192] I have also taken into account N.’s views and preferences: Mattina v. Mattina, 2018 ONCA 641, at paras. 24-26. He has expressed to Mr. Hurwitz and Ms. Barclay that he likes spending time with both parents, likes both of his homes, and wishes to continue to spend time and reside with each parent.
[193] Ultimately, the weight to be attached to an expression of a preference depends on the facts, as well as the age, intelligence, apparent maturity and the ability of the child to articulate a view: Decaen v. Decaen, 2013 ONCA 218, at para. 42; Stefureak v. Chambers (2004), 2004 CanLII 34521 (ON SC), 6 R.F.L. (6th) 212 (Ont. S.C.). In reducing the Mother’s time from half to less than half, I am mindful of N.’s desire to spend time with each parent.
[194] In this case, I find that the Mother’s past conduct was directly relevant to her ability to parent. She put N. directly in the conflict, which was harmful to him. She did not, and continues not to, support N.’s relationship with his father. She continues to fuel conflict. Although N. was well adjusted at this time, the potential for a tsunami of unrest is just under the surface of what appears to be calm. I am concerned that the calm will break quickly after the conclusion of these proceedings and that N. will be thrown by the Mother into a tumultuous ocean. For these reasons, I conclude that it is in N.’s best interests that the parenting schedule be 5 out of 14 days for the Mother, as recommended by Mr. Hurwitz.
VIII. IS THERAPEUTIC INTERVENTION OR SUPERVISION IN N.’S BEST INTERESTs?
a. The Father’s Proposal
[195] The Father proposed that, for the first six weeks of the Final Order (“phase one”), the Mother’s parenting time be supervised by a mental health professional with specialized expertise and experience in custody and post-separation parenting conflict (“a therapeutic supervisor”). This supervision was to include a teaching or coaching component, and provide parenting guidance, assistance and intervention to the Mother as necessary. The Mother was to be responsible for the fees in relation to the supervision. The Father proposed a mechanism by which the parties could agree on a suitable therapeutic supervisor. The therapeutic supervisor would provide a weekly report to both parties respecting the supervised parenting time.
[196] Provided that there were no serious concerns identified regarding the Mother’s parenting of N. during phase one, the supervision would end after six weeks. The Mother would then retain the services of a mental health professional with expertise in post-separation parenting issues as a “therapeutic parenting counsellor” for her (“phase two”).
[197] This therapeutic parenting counsellor would be engaged in addition to any other therapies. The order proposed by the Father required the Mother to meet with the therapeutic parenting counsellor weekly for a period of not less than five months. The therapeutic parenting counsellor would provide weekly reports to the parties regarding the Mother’s mental well-being and parenting. Provided that there were no serious concerns raised, the requirement for a therapeutic parenting counsellor would end after five months.
[198] The proposed order further provided that if significant concerns were identified at either stage, then the parties must bring the matter back before this court for a review of the parenting terms contained in the Final Order.
b. The Mother’s Submissions
[199] The Mother opposed the imposition of the therapeutic supervisor and the therapeutic parenting counsellor. She argued that supervised parenting time is not appropriate where there is only a potential or possible risk of harm to N., and the CAS has not made any protective recommendations.
[200] She also argued that any supervision of parenting time is intended to be short-term and that it is inappropriate for this court to delegate its functions to a therapeutic parenting counsellor to deem whether or not it is appropriate for the court to intervene in the unsupervised access.
[201] Supervision is very intrusive into the parent-child relationship. I accept the Mother’s statement of the law in her written submissions around supervision orders to be correct. Supervision ought to be short term, and long-term supervision orders are reserved for exceptional cases.
[202] This is an exceptional case. The therapeutic supervision followed by therapeutic counselling is essential to ensure that the parenting schedule ordered remains in N.’s best interests, in light of the Mother’s anticipated reaction to this court’s decision, and that she is able to make a smooth transition to the new parenting regime ordered without involving N. in further conflict and occasioning more harm to him.
c. Expert Evidence
[203] Dr. Bloom recommended that the Mother take a parenting course. Ms. Barclay, in her April 13, 2020 report, concluded that the Mother would benefit from parenting supports to assist her by providing structure and parenting strategies for managing N. in a healthy manner. Mr. Hurwitz recommended that the Mother attend a course on parenting in a high-conflict situation through an appropriate counselling agency.
[204] Mr. Hurwitz testified that he did not have confidence that the Mother could keep N. out of the conflict. Someone would have to monitor this. There would have to be “checks and balances” built in to monitor the situation and ensure that there is no regression.
[205] Mr. Hurwitz testified that he was aware that there had been a change in the parenting schedule after he released his report, but he did not know how it was working. In response to my questions, Mr. Hurwitz testified that to know that things had changed for the better, there would have to be some evidence that in fact there had been no recurrence of any of the post-separation issues. There would have to be some evidence that the Mother demonstrated full commitment to supporting the Father’s role with N. She would have to stop micromanaging, withholding, and otherwise undermining his parenting time. For example, the Mother would have to stop “bad-mouthing” the Father to N.
d. Analysis
[206] I cannot infer that there has been no recurrence of any of the post-separation issues: as the evidence set out above shows, the Mother continued to engage in conflict and attempt to undermine the Father’s relationship with N. right up to trial.
[207] Mr. Hurwitz in his report anticipated that his recommendations would be difficult for the Mother to implement, and that she would likely be in denial of having to make the necessary changes. He was also concerned about her emotional fragility and how she will react to his recommendations. When Mr. Hurwitz testified, he expressed the same concerns with respect to the Mother’s reaction to the court’s decision. I accept his evidence that there is reason to be concerned about her reaction.
[208] In his report, Dr. Bloom concluded that supportive psychological intervention for the Mother was going to be very important as the Mother has to contend with this court’s decision. He cautioned that adverse news would come as a blow to her. I accept his finding in this regard.
[209] In my view, the therapeutic supervision for the first six weeks of the order is necessary in N.’s best interest to ensure that whatever emotional dysregulation or strong reaction the Mother harbours in respect of my decision does not get communicated by her to N. It is essential for a smooth transition to a new parenting regime.
[210] Having a mental health professional monitor and assist the Mother’s parenting for at least five more months also makes sense. Sections 16(1) and 16(6) of the Divorce Act and s. 28(1)(b) and (c) of the CLRA provide the court with jurisdiction to make orders, where parents cannot agree, “about almost any aspect of the child’s life, including education, religious training, diet, vaccinations, recreation, travel, and so on. This includes making an order for counselling or therapy.”: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 48-51 (emphasis added).
[211] A mental health professional, who would act as a therapeutic parenting coach, is necessary in my view to protect N. from further harm. In the absence of the supervision and guidance of this mental health professional, I am concerned that the Mother would not be able to navigate her emotions. This mental health professional, engaged specifically to help the Mother deal with parenting conflict and other issues, could help her immediately diffuse and de-escalate any parenting crisis.
[212] While the Mother is a capable mother in terms of her direct relationship with N., she has struggled to manage his behaviour at times. For example, she restrained him for 45 minutes when he would not floss his teeth, which caused N. to have thoughts about self-harm, and she took him to the emergency department in the midst of a pandemic. The therapeutic parenting coach would help the Mother make better choices in managing N.’s behaviour.
[213] In my view, a therapeutic parenting coach is essential to protect N. from harmful conduct, to help the Mother de-escalate parenting crises and to intervene should alienating behaviour continue. Without that immediate but short-term therapeutic parenting intervention in place, the risk that the Mother will continue to engage in conflict over minor parenting issues, mismanage N.’s behaviours in light of her own dysregulation, and engage N. in the conflict to his detriment is too great.
e. Opportunity for Review
[214] The appointment of a therapeutic supervisor or parenting counsellor is not intended to delegate the court’s decision-making to a third party. Rather, it is intended to provide assistance and guidance to the Mother and some assurance to the Father and this court that the Mother’s parenting of N. is appropriate and not occasioning further harm to him. If it is, then an immediate review of the parenting terms by this court could be triggered. Such a review could take place without the necessity of either party showing a material change in circumstances under r. 15 of the Family Law Rules, O. Reg. 114/99.
[215] A trial judge may order a review of their order without requiring a moving party to move to vary the order. However, such review orders are the exception, not the norm, and should be used sparingly. A review order should not, in effect, turn an intitial order into a long-term interim order made after trial: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at para. 36-39; Children & Family Services v. G.S., 2011 ONSC 1732, 3 R.F.L. (7th) 294 (Div. Ct.), at paras. 68-90; J.D.B. v. D.K.M., 2019 MBCA 68, 435 D.L.R. (4th) 385, at paras. 71-84.
[216] To this end, I am mindful that the therapeutic parenting counsellor ought not have a perpetual discretion to trigger a review of the parenting terms. Even in the dynamic context of custody of a young child, the interests of justice require some degree of finality in court proceedings: D.G. v. A.F., 2014 ONCA 436, at para. 34.
[217] It is not intended that the therapeutic supervision or the therapeutic parenting counsellor be indefinite or that the review by this court take place in some indefinite time period: Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5, at paras. 25-26. Rather, the Final Order sets out that the therapeutic supervision is to take place for six weeks and the therapeutic parenting counsellor is to be in place for “at least” five months. The words “at least” signify that this duration can be extended by the parties through agreement, or by this court should the matter return to court for a review. The decision of whether or not trigger a review is that of the parties (not the therapeutic supervisor or therapeutic parenting counsellor). Any review of the parenting terms is to be conducted by this court.
[218] Therefore, I find that a short-term therapeutic intervention, as proposed by the Father, is essential to ensure that the Mother ceases to engage N. in the parental conflict, so that the parenting schedule set out in the Final Order can be implemented and be consistent with N.’s best interests.
IX. CONCLUSION:
[219] In conclusion, I find that it is not in N.’s best interests that there be parallel decision-making or an equal parenting time schedule. I have concluded that if any of the decision-making is left to the Mother, this will likely lead to continued conflict. I find that the Mother is likely to continue to involve N. in parental conflict. Given the views of the Father and her marriage that she continues to hold, the Mother is not able to co-parent with the Father. It is therefore in N.’s best interests that the Father have sole decision-making responsibility, primary residence and slightly more than half of the parenting time. It is also in N.’s best interests that therapeutic interventions be put in place, as suggested by Mr. Hurwitz.
X. COSTS:
[220] The parties are encouraged to agree upon appropriate costs for this trial. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Respondent Father may have 14 days from the release of this decision to provide their submissions, with a copy to the Applicant Mother. The Applicant Mother shall have a further 14 days to respond. The Respondent Father shall have a further 7 days for a reply, if any.
[221] Costs submissions are to be not longer than 10 pages, double-spaced with a 12-point font, plus a bill of costs.
[222] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
[223] If I have not received response or reply to submissions within the specified timelines after the Respondent Father’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.
_(Original signed by)
Chozik J.
Released: May 28, 2021
COURT FILE NO.: FS-19-38
DATE: 2021 05 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.C.
Applicant
– and –
S.C.
Respondent
ADDITIONAL REASONS FOR JUDGMENT
Chozik J.
Released: May 28, 2021
[^1]: There is some dispute between the parties about whether she was terminated with cause due to poor performance or “laid off”. It is not a dispute I need to resolve for the purpose of this decision.
[^2]: As described by the Springboard Clinic in N.’s Student Assessment Report.
[^3]: Application dated March 29, 2019.
[^4]: Once the parties retained counsel, the proceedings were transferred from the Ontario Court of Justice to the Superior Court of Justice.
[^5]: The qualifications of Dr. Bloom, Dr. Fitzgerald and Mr. Hurwitz were not challenged. Despite this, I was mindful of the trial judge’s gatekeeping function with respect to experts: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 23-24, 52-54. On the evidence before me, I had no hesitation in finding that Dr. Bloom, Dr. Fitzgerald and Mr. Hurwitz were qualified to give opinion evidence as experts in a defined area. Their testimony remained within its defined scope.
[^6]: The parties historically viewed the ADHD medication differently. The Mother was in favour of reducing reliance on the medication, and initially sought to avoid it all together, while the Father viewed the medication prescribed as being medically necessary. I need not resolve which approach is correct, except to note that the evidence was that N. benefitted from the medication as there was an improvement in his mood and behaviour and ability to focus.
[^7]: Dr. Aldrige also testified that she was of the view that the Mother’s allegations that the Father drugged or physically or sexually abused N. were not true.
[^8]: I am mindful that victims of abuse often to do not make contemporaneous disclosure and that the fact of a delay in disclosure of abuse does not in and of itself detract from the reliability or credibility of allegations of abuse.
[^9]: At trial, the Mother referred to the Father’s refusal to communicate with her over OFW as “financial abuse”.
[^10]: After the s. 30 Assessment was released.
[^11]: There was evidence that when the Mother was the “class parent” at N.’s school, the Father stopped receiving emails from the school about various events.