NEWMARKET COURT FILE NO.: FC-06-25395-01

DATE: 20210611

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

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

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: S. Hirschberg, Counsel for the Applicant A.S. Zaslavsky, Counsel for the Respondent

HEARD: May 25, 26, 27, 28, 31, June 1, 2, 4, 2021

REASONS FOR DECISION

Relief Claimed

Applicant’s Claims

[1] The Applicant filed an Application on February 1, 2017 requesting the following relief:

(a) a divorce;

(b) custody (decision-making) of the children;

(c) access (parenting time) to the children;

(d) child support;

(e) a restraining Order; and

(f) equalization of net family properties.

[2] The Applicant, at the commencement of trial, indicated that he was not pursuing any parenting orders in respect of the child, P.S.

[3] The Applicant did not lead any specific evidence on the issue of his request for a restraining Order.

[4] The Applicant did not lead any evidence on the issue of child support and, in closing submissions, indicated that he would like the Order to include a positive obligation on the Respondent to provide notice of any change in her financial circumstances. He also requested that the Order reflect a contribution towards significant section 7 expenses.

Respondent’s Claims

[5] The Respondent filed an Answer dated May 11, 2017 requesting the following relief:

(a) a divorce;

(b) custody (decision-making) of the children;

(c) access (parenting time) to the children;

(d) child support;

(e) a restraining Order; and

(f) equalization of net family properties.

[6] The Respondent did not lead any specific evidence on the issue of her request for a restraining Order and, in closing submissions, indicated that she was not pursuing this claim.

[7] The Respondent and the Applicant both confirmed that the issue of equalization was resolved.

[8] By Order of Justice Bird, dated March 27, 2018, the parties were divorced effective April 27, 2018.

[9] Accordingly, the trial proceeded primarily on the issues of: a) parenting time; b) decision-making; c) the Applicant’s request for a restraining Order; and d) the Respondent’s request for child support.

[10] It is noteworthy that on the sixth day of trial, the parties agreed that the evidence of Ms. Weiner would not be considered. Accordingly, the affidavit of Ms. Weiner sworn and filed at Tab 20 of the Trial Record was removed.

Brief Background

[11] The Applicant, D.S., was born in 1974.

[12] The Respondent, J.S., was born in 1973.

[13] The parties were married on May 11, 2003 and separated on February 26, 2016 (as per the Application) or on December 15, 2016 (as per the Answer). The date of separation is inconsequential to the remaining issues.

[14] There are two children of the relationship namely, P.S., born in November 2003 and E.S., born in March 2013.

[15] E.S. attends W[…] Public School and is in grade 2. E.S. is eight years old.

[16] P.S. attends T[…] Secondary School and is in grade 12. P.S. is 17 years old.

[17] From November 2003 – June 2010 the Applicant and the Respondent resided with the paternal grandparents, J.S. and S.S.

[18] From June 2010 - December 15, 2016 the Applicant and the Respondent resided at N[…] Drive, Richmond Hill, a home purchased by the paternal grandmother, S.S.

[19] On or about December 15, 2016 the Respondent was charged with one count of uttering a death threat on the Applicant. As a result of the charge and the bail conditions that were imposed, the Respondent was precluded from having contact with the Applicant. From December 15, 2016 through to the present, the children have resided primarily with the Applicant.

[20] From December 16, 2016 through February 9, 2017 the children did not have any parenting time with the Respondent.

[21] From February 9, 2017 until April 20, 2017 the children had parenting time with the Respondent one time per week for a one-hour duration, supervised at the Jewish Family & Child Services.

[22] From April 20, 2017 until October 22, 2017 the children did not have any parenting time with the Respondent.

[23] On October 2, 2017, by Order of Justice Douglas, Ms. K. Tobin was appointed as counsel for the children. Ms. Garibotti was assigned as the clinical assist. The Applicant wrote a letter of complaint against Ms. Tobin to her supervisor attempting to have her removed. The Office of the Child’s Lawyer (hereinafter “OCL”) refused the Applicant’s request. However, following a motion brought by Ms. Tobin, on February 15, 2019 she was removed as counsel for the children.

[24] From October 22, 2017 through March 2018 the children were to have parenting time with the Respondent supervised at the Social Enterprise for Canada’s Supervised Access Centre (hereinafter “SEC”) every Sunday for two hours. P.S. attended the first visit on October 22, 2017 and refused to attend further visits.

[25] From March 2018 through July 2018 the children had no parenting time with the Respondent, save and except for a visit with E.S. that occurred at the request of the OCL on May 6, 2018.

[26] A new parenting time Order was made on consent on July 19, 2018. Pursuant to the consent, the Respondent was to have parenting time with E.S. on Tuesdays and Thursdays every week from 11:00 a.m. through 2:00 p.m. This was to last 5 weeks and to be supervised by Brayden Supervision Services Inc. (hereinafter “Brayden”) . At the end of five weeks, the parties were to discuss expanded contact with either party at liberty to bring a motion. On the second visit supervised by Brayden, E.S. began stating he wanted to go home. On every attempted visit thereafter E.S. began stating that he did not want to have a visit with his mother. The last attempted visit at Brayden was on August 14, 2018.

[27] The children had no parenting time with the Respondent from August through October 10, 2018.

[28] On October 10, 2018 Justice Douglas ordered unsupervised access between E.S. and the Respondent as follows:

(a) week 1: Saturday from 12:00 p.m. through 6:00 p.m.; and

(b) week 2: Sundays from 12:00 p.m. through 6:00 p.m.

[29] Justice Douglas also ordered Brayden to supervise the parenting time exchanges. Brayden declined to supervise the exchanges as E.S. was reluctant to go freely to his mother’s care.

[30] An urgent motion was heard by Justice Jarvis on October 28, 2018 as Brayden refused to supervise the parenting time exchanges. The Applicant took the position that one of his family members should supervise the exchanges. The Respondent took the position that the exchanges should be supervised by Miriam Navy. Following an argued motion on October 24, 2018, Miriam Navy was ordered to be the parenting time exchange supervisor. The child P.S. was not permitted to attend the visits.

[31] On December 12, 2018 Justice McGee made an Order extending the parenting time between E.S. and the Respondent. Commencing March 1, 2019 parenting time was ordered to be three out of every four weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m.

[32] On February 15, 2019 the parenting time was adjusted to 6:00 p.m. in a motion brought by the Respondent and opposed by the Applicant. The OCL also successfully brought a motion to be removed as solicitor of record because the children’s views and preferences were not independently held. A section 112 assessment was ordered.

[33] On December 11, 2020, on consent of the parties, E.S.’s parenting time with Respondent was altered to the following:

(a) week 1: Thursday after school until Monday drop-off at school; and

(b) week 2: Thursday after school until Friday drop-off at school.

[34] This is the current access arrangement.

[35] Ms. Navy continues to supervise the access exchanges.

Overview of the Position of the Parties

[36] The Applicant alleges that the Respondent has mental health challenges and deficient parenting skills. The Applicant states that P.S. refuses any contact with the Respondent and, while E.S. has now settled into a routine, E.S. demonstrated a significant resistance to attending parenting time with the Respondent at least historically. The Applicant suggests that the estrangement between P.S. and the Respondent is multi-faceted and includes her being exposed to the Respondent’s suicide attempt of December 2016 and her subsequent removal from the home by police and paramedics where she was involuntarily admitted to MacKenzie Health pursuant to the Mental Health Act. Accordingly, the Applicant requests an Order that he be responsible for decision-making and, in terms of parenting time, that the children reside primarily with him.

[37] The Respondent alleges that the children were alienated from her by the Applicant and his family. The Respondent states that prior to the separation she had a good relationship with the children and, following the separation, the paternal family has poisoned the children’s minds against her. The Respondent states that P.S. is now estranged from her. Their last contact was two years ago. The Respondent states that E.S. will be estranged from her by the time he is 12 if he remains in the care of the Applicant. Accordingly, the Respondent requests an Order that she be responsible for decision-making and, in terms of parenting time, that the children reside primarily with her.

Summary of Decision

[38] For the reasons that follow, E.S. shall reside primarily in the care of the Respondent and it is she who shall make the important decisions for E.S.

[39] The Applicant shall enjoy parenting time with E.S. on an alternating weekend schedule as well as week about in the summer and a sharing of holidays.

[40] The Applicant shall pay to the Respondent $360 in monthly child support for E.S. commencing July 1, 2021 and on the first of every month thereafter based on his reported income of $40,203.60.

Summary of Evidence

D.S., Applicant

[41] The Applicant states that he and the Respondent moved in with his parents following P.S.’s birth as a result of the Respondent’s struggle to care for P.S.

[42] The Applicant states that the Respondent’s mental health issues arose early on in the relationship and he describes attending a psychiatric appointment with her as early as October 2004.

[43] The Applicant states that Dr. Grossman completed an ODSP Application on behalf of the Respondent signed April 13, 2005. The Application itself, filed with the court, contains a dearth of information but, did indicate the Respondent’s mental health impairment to be bi-polar mood disorder.

[44] The Applicant states that on May 6, 2006 Dr. Gladstone wrote to the Ministry of Transportation indicating the Respondent suffered from blank-outs and, thereafter, her driver’s licence was suspended. Dr. Gladstone did not make a diagnosis at that time.

[45] The Applicant states that the Respondent had a limited relationship with her family of origin and a challenging childhood. He noted that the Respondent, throughout their marriage, spoke of her parents in a disparaging way. The Applicant states that the Respondent made the choice not to have anything to do with them. The Applicant states that the Respondent’s family was causing ongoing problems.

[46] The Applicant states that sometime between the births of P.S. and E.S., a period of almost 10 years, S.S. connected the Respondent to her family doctor, Dr. Myers.

[47] In 2010 the Applicant’s mother purchased a home, N[…] Drive, Richmond Hill. The parties moved into the home and paid S.S. rent. Following the move, the Applicant states that he and the Respondent frequently argued and the arguments were loud. The Applicant states that the Respondent was unable to control her outbursts and she smashed things, kicked the walls and doors, screamed, swore at P.S., and slashed clothes with a knife.

[48] Before and after E.S.’s birth in 2013, the Applicant states that the Respondent struggled to care for the children independently and relied on his mother and his sister for support.

[49] The Applicant states that it was not until after the separation that the Respondent claimed she was abused. The Applicant denies that he caused the Respondent any physical or emotional abuse.

[50] On November 26, 2016 the Applicant states that the Respondent attempted suicide by taking an overdose of prescription medication. The children were in the home at the time. Paramedics attended the home and brought the Respondent to the hospital. The Applicant states that it took three paramedics to remove the Respondent from the closet as she was screaming, yelling and kicking repeatedly.

[51] The Applicant states that after the Respondent returned from the hospital on December 1, 2016, he made arrangements so that either his sister or mother would be with the Respondent and the children when he was out of the home.

[52] The Applicant states that the Respondent reconciled with her family after she was released from the hospital in December 2016. This was after the parties’ separation.

[53] The Applicant states that in the early hours of December 16, 2016, the Respondent assaulted him. The Respondent was charged with uttering death threats against the Applicant.

[54] The Applicant states that the Respondent started seeing the children, supervised at the Jewish Child & Family Services (hereinafter “JC&FS”) on March 2, 2017. There were seven one-hour visits in March and April supervised by JC&FS. The Applicant states that the children were not happy to attend the visits and wished they did not need to attend. The JC&FS closed their file in April 2017 after recommending separate visits between the Respondent and the children. The Applicant refused this request indicating that he was concerned for the children’s safety.

[55] The Applicant states that from October 2017 through March 2018 the children had parenting time with the Respondent at SEC following a motion brought by the Respondent and ordered by Justice Douglas.

[56] On April 3, 2018 the SEC visits were put on hold as E.S. was refusing to attend. A final visit did occur on May 6, 2018, at the request of the OCL, for an observation visit.

[57] Parenting time commenced again in July 2018 at Brayden. On the second visit, July 26, 2018, E.S. stated he did not want to see the Respondent. The Applicant states that E.S. refused to attend visits on August 2, 2018 and August 14, 2018.

[58] There were no further visits until unsupervised visits were ordered on October 18, 2018. As part of that ruling Justice Jarvis made an Order that P.S. was not to attend the visits. An access exchange supervisor was ordered, Ms. Navy. The Applicant opposed Ms. Navy as he states that she was not neutral or objective. He continues to state that Ms. Navy was biased in her note taking.

[59] Parenting time between E.S. and the Respondent was further expanded after the Respondent brought a motion before Justice McGee on December 12, 2018. The Applicant states that E.S. originally struggled with the parenting time but has mostly settled into the schedule.

[60] The Applicant states that he began to feel frustration with the OCL in the fall of 2018 as he felt that the children’s lawyer, Ms. Tobin, was biased against him. The Applicant states he did not want the OCL to meet with E.S. at school because it made him, the Applicant, uncomfortable. The Applicant requested that a new lawyer represent the children in November 2018 outlining his concerns with Ms. Tobin. This request was denied.

[61] The Applicant states that he should make the decisions regarding the children as he has always done so and the Respondent is unable to do so due to her mental health challenges and anger management issues.

[62] The Applicant states that the current parenting arrangements should be scaled back a little as he proposes parenting time between E.S. and the Respondent be unsupervised as follows:

(a) week 1: Thursday until Sunday; and

(b) week 2: Thursday to Friday.

[63] The Applicant also proposes a sharing of holiday time with the Respondent.

[64] The Applicant states that he did not mistreat the Respondent during the marriage. The Applicant denies that he or his family alienated the children from the Respondent. The Applicant states that the Respondent’s conduct, specifically her mental health issues, has caused the rift.

[65] The Applicant states that he is aware that he is not a perfect parent and, over the last five years, there are things he could have done better.

J.S., Respondent

[66] The Respondent describes this as a case of alienation.

[67] The Respondent describes the Applicant as being controlling of her from an early stage in their relationship. She describes being isolated and abused verbally, physically, mentally, emotionally and financially. She states that the Applicant and his family constantly insisted to her and to others that she had mental health issues.

[68] In terms of isolation, J.S. states that the Applicant cut her off from her family of origin. Initially she states that she was only permitted to call them if they sent her pre-paid calling cards. After 2006 she states that she was forbidden to have any contact with them. By the time E.S. was born, in 2013, the Respondent had not spoken to her parents for many years. The Respondent states that her parents did not know she had E.S. until after the separation in 2016.

[69] In terms of financial abuse, the Respondent states that during the marriage she had no credit cards, no bank card and no financial independence. The Applicant had a joint bank account with his mother and all income for the household went through that account. Commencing in 2010 the Respondent received ODSP and the child tax benefit and the money was turned over to the Applicant and put into the account he shared with his mother.

[70] In terms of physical abuse, after P.S.’s birth, the Respondent slept on the furnace room floor. She says that the Applicant was physically abusive. She described a pattern of abuse. She stated the Applicant, when he was working, would call the house every day at noon to make sure she was at home. The abuse escalated in November 2016 where she would be pushed, spat on, and called names. She described a knife being held to her throat and to being choked. She states that the Applicant taunted her relentlessly and several times he told her that she should kill herself, that she was a waste of space and that no one wanted her around.

[71] In terms of emotional abuse, the Respondent states that she was called names through the marriage. She was told if she left the marriage she would lose P.S. forever. There was a brief separation between the parties in 2006 although they reconciled. The Respondent states that during the period of separation in 2006 she was forced to sign a Separation Agreement although she was not permitted to read the Separation Agreement prior to signature. In it, the Applicant would have custody of P.S. and the Respondent would have supervised contact with P.S. only. Despite the reconciliation, the Respondent states that from 2006 onwards whenever she did something ‘wrong’ in the Applicant’s eyes, he would bring up the agreement. He held the agreement over her head for the rest of the relationship.

[72] The Respondent states that S.S. was also abusive to her. She would call her names and put her down in front of her children. The Respondent stated that she was not free to speak to the police or the JC&SF because the Applicant was always listening behind a door.

[73] In September 2016 the Applicant started dating L.O.. The Respondent states that in November 2016 the Applicant told her that he wanted a divorce. The Applicant also advised the Respondent that she would be out of the children’s lives and he wanted his children to have a new mother. The Respondent states that she was told: “Take a good look at the kids because you will never see them again.” “I will bury you.” “I will destroy your life.” “I will raise the kids with my new girlfriend.” “The children are going to have a new mother.” “You’re crazy, and I’m going to prove it and take the kids.” The Respondent states that this is, in fact, what the Applicant tried to do.

[74] The Respondent states that the stress caused her, on November 26, 2016, to take an overdose of prescription pills in, what she describes, as less of a suicide attempt and more of a cry for help.

[75] The Respondent states that when she was ready for discharge from the hospital on November 30, 2016 the Applicant advised the Respondent that she was not allowed to return home. When the nurse called the Applicant to advise that she was being discharged, the Applicant advised the nurse that he was changing the locks. The nurse called the police. The police spoke to the Applicant and the Respondent was discharged home in a cab, with money provided by the hospital. Upon arriving home she describes being abused and shoved repeatedly by the Applicant.

[76] From December 2, 2016 through December 5, 2016 the Respondent describes a relentless effort by the Applicant and his family to have her leave the home. The Applicant brought the children to the home of his mother, S.S., and moved in with the paternal grandparents. The family encouraged the Respondent to go back to MacKenzie Health. When that failed, P.S. was put on the phone to tell the Respondent that she wanted nothing to do with the Respondent unless she gave up the house and got help. The Respondent describes going to S.S.’s home to see the children and was told to go away. The Respondent described the Applicant as yelling at her in front of the children. The Respondent went back to MacKenzie Health on December 11, 2016. The following day Dr. Kurup determined there was no reason for her to be in the hospital and that the situation was more about domestic violence than mental health. The Respondent was released from the hospital and had to take the bus home.

[77] The Respondent returned home from the hospital on December 15, 2016 and discovered that the Applicant and the children had moved back into the home. When she entered she was yelled at by the Applicant and told to leave. The police came to the home. After the police left, the Applicant gave her money for a hotel and said she could see the children the following day. The following day, however, the Respondent states that the Applicant refused to allow her contact with the children and, instead, called the police and stated that the Respondent threatened to kill him.

[78] Following the separation, the Respondent states that she has been completely alienated from P.S. and had extremely limited contact with E.S. Prior to the separation she states that she and the children had a good relationship. However, from December 2016 until present, P.S. has changed.

[79] The Respondent states that there was no contact between her and the children after the separation in December 2016 until February 2017 and, at that time, P.S. always presented as angry, rude, and disrespectful. Her statements to her mother were cruel. P.S. also interfered with the parenting time the Respondent enjoyed with E.S. The Respondent states that the visits were sabotaged by the Applicant before they began by his coaching of the children and his alienating behaviour.

[80] The Respondent states that she had had to bring numerous motions to secure any parenting time with the children and those motions were continuously opposed by the Applicant.

[81] After securing parenting time through the courts, the Respondent states that the Applicant still attempted to thwart her visits. The alienation of the children continued. The Respondent was accused of not following health restrictions and guidelines regarding Covid-19 for a year. In November 2020, the Applicant, S.S. and P.S. all tested positive for Covid-19. E.S. and the Respondent did not. Despite this, the Respondent states that the Applicant initially blamed her for causing the illnesses. The Respondent’s parenting time was impacted as E.S. had to remain in quarantine.

[82] On July 19, 2018 I made an Order that the children were to commence counselling with Joanna Seidel. The purpose of the counselling was to assist the children in dealing with issues they had with the Respondent. The Respondent states that despite court ordered counselling with Ms. Seidel, the Applicant changed the counsellor to Ms. Lazamana who does not provide services related to separation, parental conflict or reintegration.

[83] The Respondent, in her cross-examination, outlined several instances at parenting time visits where she could have handled things better. She describes being in a vulnerable state, with little contact to her children and the eldest, P.S., attending visits making cruel comments to her. The Respondent describes grieving the loss of her daughter.

[84] The Respondent states that she attended a lot of sessions with her therapist and has now let go of a lot of her anger she had towards the Applicant. When asked if she takes any ownership regarding her relationship with the children, the Respondent stated ‘no, they poisoned the children against me’. The Respondent conceded that the suicide attempt may have had some contribution.

[85] The Respondent states that the only things she is diagnosed with in regards to her mental health are anxiety and a learning disability. She states that after years of abuse she lost her self-esteem and sense of self-worth. The Respondent did not have a regular mental health service provider until 2014 when she saw Dr. Kurup who recognized no major mental health disorders and no concerns regarding her cognitive ability. The Respondent states that following the separation her mental health improved significantly. She reconnected with family and friends and started driving again.

Samantha Krebs, Friend of the Respondent

[86] Ms. Krebs, a friend of the Respondent, described a day where the Respondent showed her P.S.’s cell phone. The Applicant had texted his daughter: “How’s the psycho today?” P.S.’s response was: “Crazy as usual.”

[87] Ms. Krebs testified that most play dates were at the Respondent’s home as the Respondent was not permitted to attend the homes of the other mothers. The playdates, she states, were to end no later than 4:00 p.m. because the Applicant would be returning home.

[88] Ms. Krebs was not permitted to call the Respondent on the weekend because the Applicant would be home. Ms. Krebs described the Respondent as a helicopter mother who was a great cook.

M.T., Friend of the Respondent

[89] Ms. M.T., a friend of the Respondent, testified that she could only see the Respondent during the week when the Applicant was at work. Ms. M.T. states that the Respondent had no bank card, credit cards or transportation and she stated the Respondent was not permitted to go out or socialize. Ms. M.T. describes the Respondent’s home as spotless and the Respondent as being a very good cook.

[90] Ms. M.T. describes an instance at the Moms and Tots program where the Respondent asked to exchange numbers. S.S. was present and suddenly grabbed E.S. to put him in the car. S.S. stated: “J.S. you know I have plans with R.F. soon, and you’re not worth being late for.”

[91] Ms. M.T. describes going with the Respondent to the library and checking out a book under her name. The Respondent, she states, only looked at the book in the car saying she could not take the book home because the Applicant would know that she had gone out.

[92] Ms. M.T. stated that the Respondent confided in her that if she ever left the Applicant he would take her children away and she would never see them again. This was repeated over and over again.

Dr. Myers, Respondent’s Family Physician

[93] Dr. Miriam Myers testified that on May 5, 2010, 11 years ago, she completed an application for CPP disability for the Respondent. In the preparation of the report, she did not complete intellectual testing, she did not obtain any educational assessments and there was no testing done for mood disorder. Despite this, Dr. Meyers, at the time wrote: “Ms. S. is intellectually impaired in combination with immaturity, poor judgement and a significant mood disorder and difficulties with anger management. I do think she is significantly disabled and unable to function normally in the community.”

[94] When asked if she could work today, Dr. Myers said perhaps with supports. She observed that the Respondent’s level of functioning was better now than it was in 2010.

[95] Dr. Myers testified that she received information regarding the Respondent from another of her patients, S.S., and that she considered the information. She identified that the information she received from S.S. was in conflict with the information she received from the Respondent. Dr. Myers identified a ‘very antagonistic relationship’ between the Respondent and the S. family.

[96] Dr. Myers indicates that, under the circumstances, the Respondent’s anger is understandable.

[97] In one note, Dr. Myers indicated S.S. “was eager to have J.S. go on disability…”.

S.S., Applicant’s Mother

[98] S.S. testified that the Respondent cleaned poorly and over-cooked the food when cooking.

[99] On January 23, 2007 she advised Dr. Myers that the Respondent had long standing problems with lying, very volatile angry outbursts, and that she could be very vindictive when angry.

[100] S.S. indicated to the OCL and in testimony that she thought P.S. could decide for herself if she wanted a relationship with her mother. After the separation she states that she did not encourage a relationship between P.S. and her mother because P.S. wanted no part of it.

[101] S.S. indicated she found the parenting time exchange supervisor, Ms. Navy, biased. In the exchange note of May 3, 2021, S.S. indicated to Ms. Navy that there was some damage to the Respondent’s vehicle. She asked Ms. Navy to include it in her notes. When Ms. Navy indicated that her role was not to inspect parties’ vehicles, she reports S.S. saying that since she was paying her so much money she should not be biased.

[102] When asked if she would have a conversation with P.S. to encourage her to have a relationship with her mother, S.S. stated she would not do so.

[103] At the access exchange on December 16, 2018 Ms. Navy reports that S.S. “approached and grabbed E.S. away without a word to anyone and before J.S. could say good-bye. When asked about this in cross-examination, S.S. stated she could not recall the encounter.

[104] When asked about the Respondent’s positive qualities S.S. stated: a) she is artistic and creative and b) friendly.

Mrs. R.F., Applicant’s Sister

[105] Mrs. R.F. is the Applicant’s sister. She testified that Ms. Navy was not impartial. She explained that Ms. Navy had to call the Respondent to come down from her apartment at parenting time exchanges and that was not reflected in the notes. Ms. R.F. also stated that when she asked the Respondent where she had been, out of covid-19 concerns, Ms. Navy did not write in her notes all the places the Respondent said she had been. Ms. R.F. stated that she could provide other examples of Ms. Navy’s bias.

[106] On August 14, 2020, at the parenting time exchange, and in front of E.S., Ms. R.F. was visibly upset and remarked that E.S. was getting hurt in the Respondent’s care. Her upset was as a result of a black eye that E.S. had.

[107] When asked what she thought about the fact that the children had only seen their mother in 2017 for 12 hours, she stated that she thought the Applicant had pushed for it. She stated that the Respondent had disappeared for many months and a lot of not seeing the children was her fault.

Kim Heim, Office of the Child’s Lawyer Clinician

[108] On February 15, 2019 Justice Jarvis made an Order for a section 112 assessment. Ms. Kim Heim was assigned as the clinician on April 4, 2019. A disclosure meeting was held on October 22, 2019. The report dated November 4, 2019, was filed with the court.

[109] In her assessment she makes the following observations:

a) The Applicant does not acknowledge any positive attributes whatsoever about the Respondent and is unable to identify any benefit to the children of having a relationship with her. The Applicant struggled to find any positive comments to say about the Respondent.

b) P.S. is not willing to consider any contact whatsoever with the Respondent. P.S.’s position appears to be deeply entrenched. Her comments about the Respondent are scathing.

c) Information reviewed, and interviews completed suggest the children are not influenced positively with respect to the Respondent in the Applicant’s home. Based on the negative perception of the Respondent held by the Applicant and S.S., and P.S.’s comments, it is evident that P.S. is not being encouraged to have a relationship with the Respondent.

d) It is concerning that the Applicant relocated to another city with the children, without informing the Respondent of his intention to do so, and without providing the Respondent with an address where the children would be residing.

e) It seems that the processes the children have been and continue to be exposed to decision-making and parenting time issues and this may be more damaging to them than anything related to the fears of each parent about the other.

f) According to her psychiatrist, Dr. Kurup, the Respondent has demonstrated stability of mental health for approximately a year. This is positive, nonetheless, the Respondent has experienced long-term mental health challenges, and one year of stability is relatively brief. Dr. Kurup communicates that she is not concerned about the care of the children by the Respondent related to the Respondent’s mental health challenges. However, it is unclear to this clinician whether the Respondent can put the needs of the children ahead of her own when she is not coping well emotionally.

g) The Applicant also admits to a suicide attempt several years ago. Unfortunately, according to the Applicant, he has no family doctor, and he denies involvement with any service providers. Therefore, it has not been possible to assess whether there are concerns about the Applicant’s mental health.

h) Overall, observation visits with both parents were positive.

i) E.S. was seen to be disrespectful to the Respondent several times, without an effective response from the Respondent.

j) The Applicant was observed to be controlling interactions in the room between family members at the observation visit at his home. The Applicant’s controlling behaviour of P.S. and S.S., without challenge, suggested an established pattern of interaction.

k) Counselling was initiated with the children by Joanna Seidel in 2018, but was discontinued by the Applicant, reportedly due to financial issues. The Applicant arranged counselling with Ms. Laxamana but she does not offer therapy to address issues related to separation, parental conflict and reintegration.

[110] In terms of decision-making and parenting time, Ms. Heim made the following recommendations:

1. Sole decision-making to the Applicant; and

2. The Respondent to have unsupervised parenting time with E.S. on all but one weekend each month from 6:00 p.m. Friday until Sunday at 7:00 p.m. (extended to Monday at 7:00 p.m. on holidays). Provision was also made for holiday time including summer.

[111] In cross-examination, Ms. Heim agreed there have been a number of changes since her assessment two years prior:

a) The Respondent now had a 2-bedroom apartment and a car;

b) The Respondent’s mental health stability, according to her psychiatrist, Dr. Kurup, in a report dated May 2, 2018, was stable with no concerns demonstrating at least a 3-year period of stability.

c) While she knew the parenting time between the Respondent and the children, in 2017, was minimal, 12 hours of parenting time for the entire year was concerning to her.

d) Dr. Myers, the family doctor, did not see J.S. from November 2017 through June 2019. When Dr. Myers offered her opinion to Ms. Heim in August, 2019, she had only seen her one time in two and a half years. Ms. Heim was unaware of the infrequent contact.

[112] In cross-examination Ms. Heim agreed to the following:

(a) alienation is abuse;

(b) parents who violate a court Order is a consideration when the OCL make a recommendation as to which parent should be the decision-maker;

(c) witnessing domestic violence is harmful to children;

(d) she was unaware that the Respondent alleged being abused by the Applicant starting back in 2005 and, although the Applicant provided copies of the Respondent’s emails, he did not include those that alleged abuse;

(e) she was unaware of the December 11, 2016 medical note from Dr. Kurup that stated, under the section labeled diagnosis, that this seemed like a domestic violence case rather than any major Axis 1 at this point;

(f) she was unaware that S.S. was also a patient of Dr. Myers and had provided information to Dr. Myers regarding the Respondent’s mental health;

(g) Ms. Heim found it concerning that P.S.’s narrative regarding her mother changed dramatically from December 2016 (where P.S. stated that she and her mother always got along and she was worried her mother would harm herself again) through March 2017 (where P.S. disclosed she wished her mother had died in December 2016);

(h) Ms. Heim did not see any interaction between P.S. and the Respondent because P.S. was completely opposed to it;

(i) Ms. Heim acknowledged concern that the Applicant moved the children to Barrie and in with Ms. L.O. so quickly. She also acknowledged that it would be concerning if the Applicant tried to replace the children’s mother with Ms. L.O.;

(j) Ms. Heim was unaware that the change of counsellors from the court ordered, Ms. Seidel, to Ms. Laxamana was not just as a result of the Applicant’s financial issues but also, as set out in the affidavit of the Applicant sworn May 1, 2019, Ms. Seidel’s approach towards P.S. and that the Applicant stated he exercised appropriate parenting authority;

(k) Ms. Heim was unaware that E.S. said that he was not allowed to have any gifts from the Respondent at his home and Ms. Heim found it concerning; and

(l) Ms. Heim agreed that much has changed since she made her report, that the report was quite dated and she cannot conclude that there should be different recommendations as she has not completed an updated assessment.

Sandra Garibotti, Office of the Child’s Lawyer Clinician

[113] Ms. Garibotti was the clinical investigator on the panel of the OCL and was the clinical assist during the period of time Ms. Tobin represented the children.

[114] Ms. Garibotti filed two affidavits with the court and was not cross-examined.

[115] She states that during an interview with P.S. she had prepared notes that she glanced at from time to time because she did not want to forget anything. During one meeting with P.S., the Applicant was at the top of the stairs.

[116] Ms. Garibotti states that the Applicant told her that he met Ms. L.O. in September 2016.

[117] Ms. Garibotti stated that E.S., when asked to describe his family, listed his father, his sister P.S., his mother L.O. and his sister N. (L.O.’s daughter). E.S. stated that his ‘other mother’ brought him presents, however, he said he didn’t really want to take the presents. When asked why he said that he advised that the last time he brought home a shirt his mother bought home, his father ripped it up. When asked if anyone told him what to say when he talked to his lawyer, Ms. Tobin, he said yes but he didn’t remember what he was suppose to say.

[118] P.S. asked her lawyer if she could get a restraining Order against her mother.

Joanna Seidel, Reunification Counsellor

[119] Ms. Seidel was the counsellor for the children for a short period of time. Ms. Seidel filed a report with the court. She was not cross-examined on her report.

[120] The parents both signed the Family Therapy Intervention Agreement in advance of the court ordered counselling. Pursuant to the agreement, the parties agreed that the objective of family therapy was not to see if it was in the best interests of the children to see their mother but, rather, they agreed that it was in the best interests of the children to have meaningful relationships with both parents. The family therapy intervention was intended to help the children have a heathy and meaningful relationship with both parents.

[121] The Applicant vehemently stated that he believed it was not in the best interests for the children to have a relationship with their mother and reported concerns over the safety of the children while in her care.

[122] After meeting with P.S. only twice, Ms. Seidel asked the Applicant to bring P.S. in for more regular and consistent appointments. The Applicant stated that P.S. no longer needed therapy ‘and the Judge had supported this in writing in October 2018.’ He also stated that P.S.’s decision to have her mother out of her life was independent of his views and justified because of her (the Respondent’s) inept parenting.

[123] Ms. Seidel states that the process of outpatient family therapy commenced on October 18, 2018. The family therapeutic process was terminated prematurely by the Applicant.

[124] In her report Ms. Seidel states: “Given D.S.’s concerns about the mother, it is uncertain why he originally signed the Family Intervention Agreement voluntarily consenting to the process, even after having received informed consent and legal advice.”

Analysis

Credibility

[125] The Applicant’s evidence, as well as that of S.S. and Ms. R.F., followed the same narrative. However, their testimony, in general, had a number of concerning inconsistencies such that I found their testimony unreliable in many areas and unbelievable in others. Some examples of inconsistencies are noted below.

[126] The Applicant states that he and the Respondent moved in with his parents following P.S.’s birth as a result of the Respondent’s struggle to care for P.S. However, the evidence at trial was clear that the parties moved in with his parents the day P.S. was born. The Respondent would not have had opportunity to struggle in her parenting.

[127] On October 30, 2006 the police were called to the home. Although the police report indicates that the Applicant was the complainant, the Applicant stated it was the Respondent who called the police. The call to the police was made to report the maternal grandfather harassing the couple.

[128] On November 26, 2016 the Applicant states that the Respondent’s suicide attempt required three police officers to remove the Respondent from the closet as she was screaming, yelling and kicking repeatedly. This is inconsistent with the evidence of the Respondent and of the police report which makes no mention of an altercation, yelling or screaming.

[129] On December 15, 2016 when the police arrived at the parties’ home the Applicant advised them that he had custody (which he said was given to him by the CAS) and that the Respondent had supervised parenting time. These were untrue statements.

[130] After meeting with P.S. only twice, Ms. Seidel asked the Applicant to bring P.S. in for more regular and consistent appointments. The Applicant stated that P.S. no longer needed therapy and the Judge had supported this in writing in October 2018. That was an untrue statement.

[131] During testimony the Applicant insisted that the Respondent was convicted of assault despite evidence that the criminal charges were withdrawn in favour of the Respondent entering into a peace bond.

[132] The Applicant advised Ms. Garibotti that he met L.O. online in or about September 20, 2016. The Applicant told the CAS worker, Ms. Elsner, on December 9, 2016, in response to the Respondent saying her suicide attempt was partly in response to the Applicant having a new girlfriend, that he was not seeing anyone and the Respondent has been paranoid about him seeing someone for years. In cross-examination the Applicant struggled with the dates he met Ms. L.O.. Originally he agreed that he met Ms. L.O. in or about September 2016. When confronted with the CAS records where he denied he had been seeing Ms. L.O. at the time of the suicide attempt, the story morphed. The Applicant could not provide, in cross-examination, an answer to the question when he met Ms. L.O.. The Applicant moved in with L.O. the following year in the summer 2017.

[133] The Applicant stated that the Respondent did not see the children from April 20, 2017 through October 22, 2017 despite attempts from his counsel to organize parenting time because the Respondent was unable to be located as she was living at a shelter. Evidence was filed contradicting the Applicant’s statement. The evidence showed the Respondent’s then counsel, Mr. Greenstein, sent correspondence to the Applicant’s counsel during this period on: May 11, 2017, June 9, 2017, July 20, 2017, July 21, 2017, July 31, 2017, August 11, 2017, August 30, 2017, September 12, 2017, September 14, 2017, and October 6, 2017.

[134] Ms. R.F.’s sworn affidavit dated June 19, 2020 states that on December 10, 2016 the Respondent called her, told her she was feeling unstable and wanted to be readmitted to MacKenzie Health. This is inconsistent with the evidence that the Respondent provided where she stated that she was under pressure to go to the hospital from the S. family. The hospital records do not indicate that the Respondent was admitted voluntarily. Rather, she was admitted involuntarily which is contrary to Ms. R.F.’s narrative. Further, the hospital records indicate that the Respondent was admitted, not because she desired it, but based on Ms. R.F.’s expressing concerns. One of the concerns Ms. R.F. expressed was that the Respondent left the children unattended. This is inconsistent with her own evidence and that of the Applicant wherein, at the time in question, they stated that someone was with the Respondent in the presence of the children at all times.

[135] Ms. R.F.’s statement, that it took three hospital security guards to intervene as the Respondent was fighting and did not want to get into a hospital gown, is questionable. Ms. R.F.’s version of events is not reflected in the medical notes and the entire narrative is inconsistent. If the Respondent legitimately wanted to go to the hospital why would she fight with three security guards? Why is the incident not reflected in the hospital records? The description offered by Ms. R.F. is also inconsistent with the Respondent’s reported demeanor in the hospital notes where it states: “It was a difficult decision by Dr. Comendador on assessment as J. was observed to be quite calm during the entire stay in the hospital, and she remained cooperative and her communication was pleasant. It was a difficult decision due to the concerns expressed by the family.”

[136] The Respondent’s evidence of pressure from the family to be hospitalized or she would not see her children is consistent. The hospital note reflects: “She feels that D. and the family have been fabricating stories and she was not as bad as they portrayed her to be.” “She tells me that her sister-in-law told her that if she does not come to the hospital seeking help then none of the family members will talk to her.” I believe the Respondent’s rendition as it is consistent with the medical records.

[137] At the parenting time exchange of April 12, 2020 Ms. R.F. did not leave as soon as the access exchange was over. My court Order dated July 19, 2018 stated: “Following the access exchange, the Applicant Father (or any third party sent by the Applicant Father) shall leave the access exchange location.” Rather than leaving immediately following the access exchange, as required by the court Order, Ms. R.F. went over to examine the side door of the building that J. exited.

[138] At the April 17, 2020 access exchange Ms. R.F. took E.S. back to the car and began leveling accusations at the Respondent saying she saw her getting off a bus with bags from Walmart and that she ‘had photos.’ E.S. was in the car with the door open and within hearing distance. Ms. R.F. stated to Ms. Navy “I don’t appreciate being lied to.” Ms. R.F. eventually brought E.S. from the car for the exchange. Ms. R.F. then called Ms. J.S. “fedrait” (a Yiddish word to describe being unhinged/worked up) and hoped that E.S. would not suffer as a result. This was stated in E.S.’s presence. This is contrary to the court Order of July 19, 2018 where neither party would speak negatively about the party opposite and neither party shall permit others to speak negatively. Ms. R.F. stated that she used the Yiddish word so that E.S. would not understand. Ms. R.F.’s disregard of court orders is concerning.

[139] The Applicant suffered from depression during the marriage. He had a suicide attempt just before the couple were married. Medical records reveal that the Applicant was on Prozac for over 10 years. Despite living with his parents most of his life, when Mrs. S.S. was cross-examined, she denied the Applicant had ever suffered from depression and denied he was on Prozac for 10 years. It is noteworthy that when the Applicant was asked if he was on Prozac for 10 years, his response was he could not recall. That is an unbelievable response.

[140] By contrast to the evidence of the Applicant, Mrs. S.S. and Ms. R.F., the Respondent’s testimony was consistent with her narrative and consistent with the corroborating materials filed by third parties. Her evidence was also believable as she made admissions against interest in a manner that was sincere. Accordingly, where the evidence of the Respondent differs from that of the Applicant, Mrs. S.S. and that of Ms. R.F., I prefer the evidence of the Respondent.

Applicant’s Theory of the Case – Respondent’s Mental Health Issues

[141] As stated, the Applicant alleges that the Respondent has mental health challenges that are deeply rooted, long standing and with deficient parenting skills. However, I have concluded that the evidence provided to the Court demonstrates something very different.

[142] The Respondent states her only diagnosis are anxiety and a learning disability. She states that after years of abuse she lost her self-esteem and sense of self-worth. The Respondent did not have a regular mental health service provider until 2014 when she saw Dr. Kurup who recognized no major mental health disorder and no concerns regarding her cognitive ability. The Respondent states that following the separation her mental health improved significantly. She reconnected with family and friends and started driving again.

[143] The evidence at trial included an Ontario Works application from Dr. Grossman dated April 13, 2005 confirming that the Respondent had been seen by him five times and he determined that she could not participate in the Ontario Works program due to a bipolar mood disorder. The note was shy on details and I am not confident that the diagnosis identified reflected her mental health state at the time or now.

[144] The evidence at trial also included a medical note from Dr. Gladstone dated May 6, 2006 that indicated the Respondent experienced black-out periods lasting as long as 30 seconds. There was no diagnosis made at the time.

[145] In 2007 the Respondent signed an application for ODSP. She states that she did not prepare the form, because it was not in her handwriting, but she did recognize her signature. In the document, under the section for illnesses that prevent you from working, the following were listed: Mood disorder, Anxiety Disorder, Obsessive Compulsive, and Migraines. I do not find this indicative of the Respondent’s mental health functioning at the time nor does it reflect the Respondent’s mental health issues today.

[146] Dr. Miriam Myers testified that she completed an application for CPP disability for the Respondent on May 5, 2010. In the preparation of the report, she did not complete intellectual testing, she did not obtain any educational assessments and there was no testing done for mood disorder. Dr. Myers acknowledged that she received information regarding the Respondent from another of her patients, S.S., and that she considered the information. She identified that the information she received from S.S. was in conflict with the information she received from the Respondent. Dr. Myers identified a ‘very antagonistic relationship’ between the Respondent and the S. family. In one note, Dr. Myers indicated S.S. “was eager to have J. go on disability…”. Despite this, Dr. Meyers, at the time wrote: “Ms. S. is intellectually impaired in combination with immaturity, poor judgement and a significant mood disorder and difficulties with anger management. I do think she is significantly disabled and unable to function normally in the community.”

[147] I am not confident that the diagnosis of Dr. Myers, a family doctor and not a psychiatrist, are accurate. Dr. Myers completed no independent testing, relied on no assessments from specialists, and she relied on information provided to her from Mrs. S.S., the accuracy of which is questionable. Dr. Myers observed that the Respondent’s level of functioning now is better than it was in 2010.

[148] Perhaps most compelling is the suicide attempt that occurred on November 26, 2016. The Respondent describes it as a cry for help rather than a suicide attempt. It is not disputed that the Respondent took a number of Prozac and Lorazepam pills. She was admitted to the hospital, MacKenzie Health, on November 26, 2016 under a Form 1. She was discharged on December 1, 2016.

[149] The medical note from her psychiatrist, Dr. Kurup, dated November 27, 2016 indicated the Respondent reported not being suicidal but very upset over the Applicant seeing another woman. The Respondent was diagnosed at Axis I: ‘situational crisis, adjustment disorder with depression’; Axis II: ‘insecure anxiety traits with poor self-esteem’; Axis III: ‘No acute physical illness’; Axis IV: ‘Major stressor has been the marital adjustment and her husband’s infidelity.’

[150] On December 5, 2016 a safety assessment was conducted by the Jewish Family & Child Services and identified parent/caregivers’ mental health as a safety concern. The worker recommended parenting time supervision between the Respondent and the children until the Respondent’s psychiatrist indicates she can be in a caregiving role again.

[151] The Respondent returned to the hospital at MacKenzie Health on December 10, 2016 and was formed again. She was discharged the following day when her psychiatrist saw her on December 11, 2016. Upon examination, Dr. Kurup wrote: The patient tells me that her sister-in-law told her that if she does not come to the hospital seeking help then none of the family members would talk to her. The Respondent was described as follows:

“Her speech is of a normal volume, tone and rhythm. She is cooperative and appears to be pleasant. Her mood seems to be stable effect with adequate reactivity. Thought form seems organized. Thought content is concerned about her future; however, there is no evidence of any delusions or thought disorder. No perceptual abnormalities. No real death wishes or suicidal ideation or plan. No ideas to hurt the children or anybody else. In fact, she reports that she loves her children and she wants to be with them. She is alert and oriented. She has reasonably good insight into her condition and adequate judgement. To me it seems more like a situational crisis at home and the circumstances surrounding that. This seems to be more like an abusive domestic violence situation rather than any major Axis I at this point. I do not see her as certifiable at all. There are no real safety concerns, and there is no evidence of any psychosis or any major mood symptoms at present. I am discontinuing her Form 1 and discharging her home.”

[152] Dr. Kurups’s observations and diagnosis are contrary to the Applicant’s theory of the case and consistent with the Respondent’s theory of the case. Dr. Kurup provided, through her notes, the only psychiatrist’s medical evidence regarding the Respondent’s mental health at trial.

[153] As well, the circumstances relating to the Respondent’s hospitalization are consistent with the Respondent’s description of the Applicant being controlling from an early stage in their relationship. She describes being isolated and abused verbally, physically, mentally, emotionally and financially. She states that the Applicant and his family constantly insisted that she had mental health issues and pressured her to admit herself to the hospital.

[154] I believe the Respondent’s version of events as it is consistent with the evidence presented at trial. For example, she states that the S. family members called her and urged her to return to the hospital. She states when that failed they had P.S. call her. While that is denied by the Applicant, the supervised parenting time visit note dated April 4, 2017 confirms the Respondent’s version of events when P.S. called her urging her to go back to the hospital. The case note states: “Mom suddenly said to P.S. (crying) remember when you told me on the phone that if I get help and if I give up the house then maybe you and I can be friends. P.S. said yeah, but did you get help. NO, you are the phoniest person I know.”

[155] The Respondent’s reports of abuse were consistent through the marriage. As early as December 31, 2004 the Respondent reported to Dr. Grossman that she lived in fear of her husband’s freaking out.

[156] When the parties had a brief separation on June 1, 2006, a Separation Agreement was prepared by the Applicant’s lawyer. The agreement included the Respondent’s waiver of Financial Statements and, while the Applicant had independent legal advice, the Respondent waived independent legal advice. Pursuant to the agreement, the Applicant would receive sole custody of the child, P.S. (E.S. was not yet born). The Respondent was given supervised access with the supervision to occur only by the Applicant, Sundays from 10:00 a.m. – 5:00 p.m. Spousal support was waived. The Respondent stated that she was not permitted to read the document but told to sign it by the Applicant. Her testimony was that the Applicant told her to sign it or she would lose P.S. The Applicant, she states, later told her what the document said and he held it over her head for years saying he had custody of P.S.

[157] In terms of isolation, J.S.’s evidence is compelling. The Respondent states that she was cut off from her family of origin. Initially she states that she was only permitted to call them if they sent her pre-paid calling cards. This was not disputed. After 2006 she states that she was forbidden to have any contact with them. The Respondent testified that the Applicant told her she could only have one family. The Applicant’s evidence that she spoke disparagingly of her family and did not want anything to do with them is light on details and inconsistent with her reunification after separation. She sent emails to her parents, in the early years, advising she was being abused. The actions of the Respondent’s parents were singular in purpose and that was to obtain assistance for their daughter who was in an abusive relationship and it was not to harass the family as was alleged by the Applicant.

[158] In terms of financial abuse, the Respondent states that during the marriage she had no credit cards, no bank card and no financial independence. The evidence confirmed this. The Applicant had a joint bank account with his mother and all income for the household went through that account. The home, from which the couple’s resources were primarily used, was owned by S.S. Commencing in 2010 the Respondent received ODSP and the child tax benefit and the money was turned over to the Applicant and put into the account he shared with his mother. In the Equifax search provided to the court, the mother had no credit history until after the separation.

[159] In terms of physical abuse, the Respondent provided evidence that she was abused through the marriage. After P.S.’s birth, the Respondent slept on the furnace room floor. She says that the Applicant was physically abusive. She described a pattern of abuse, apology and abuse. She stated the Applicant, when he was working, would call the house every day at noon to make sure she was at home. The abuse escalated in November 2016 where she would be pushed, spat on, and called names. She described a knife being held to her throat and to being choked. She states that the Applicant taunted her relentlessly and several times was told she should kill herself, that she was a waste of space and that no one wanted her around. The Applicant denies this. He states that she wanted to sleep in the furnace room and that he was never abusive or controlling. However, the evidence of the Respondent in this regard is corroborated by the evidence of Ms. Krebs and Ms. M.T..

[160] In terms of emotional abuse, the Respondent states that she was called names through the marriage. The Applicant concedes that there was name calling in the relationship. The Respondent’s evidence that she was told if she left the marriage she would lose P.S. forever is compelling. As stated, she states she was forced to sign a Separation Agreement in 2006 although she was not permitted to read the Separation Agreement. In it, the Applicant would have custody of P.S. and she would have supervised contact. Despite the reconciliation, the Respondent states that from 2006 onwards whenever she did something ‘wrong’ in the Applicant’s eyes, he would bring up the agreement. He held the agreement over her head for the rest of the relationship. This narrative is persuasive. It explains many of the actions of the Respondent including her re-admission to MacKenzie Health in December 2016.

[161] The Respondent states that S.S. was also abusive to her. She would call her names and put her down in front of her children. This was consistent with the evidence of Ms. M.T. when she described an instance at the Moms and Tots program where S.S. stated: “J. you know I have plans with R.F. soon, and you’re not worth being late for.”

[162] The Respondent stated that she was not free to speak to the police or the JF&CS because the Applicant was always listening behind a door. This is consistent with the evidence of the OCL clinician, Ms. Heim, who provided evidence that when she was interviewing P.S. the Applicant was at the top of the stairs.

[163] It was shocking to hear that after the Respondent’s suicide attempt the Applicant did not bring the children to see her in the hospital; that he threatened to lock the doors to the home if she tried to return home when discharged; and that intervention of a nurse and the police were required to permit the Respondent to return home. The Respondent had no money, no bank cards, no driver’s licence, no job, no relationship with her family and the Applicant was content to lock her out of the house and preclude her from seeing her children at a time where, by his evidence, she was vulnerable having just attempted suicide.

[164] The emotional abuse extended to and included S.S. who volunteered a questionable narrative to the Respondent’s family doctor and who struggled to consider anything positive to say about the Respondent describing her as friendly and creative.

[165] In September 2016 the Applicant started dating L.O.. The Respondent states that in November 2016 the Applicant told her that he wanted a divorce and also said that the Respondent would be out of the children’s lives and he wanted his children to have a new mother. I believe he told the Respondent: “Take a good look at the kids because you will never see them again.” “I will bury you.” “I will destroy your life.” “I will raise the kids with my new girlfriend.” “The children are going to have a new mother.” “You’re crazy, and I’m going to prove it and take the kids.” In fact, that is precisely what he tried to do based on the facts presented at trial. He moved the children to Barrie without advising the Respondent and into the home of L.O.. This occurred in the summer of 2017. The children repeatedly told the Respondent that they had a new mother. In 2017 the Respondent only saw the children for 12 hours. Why did the Applicant lie to the hospital staff stating that he was not seeing anyone else in November 2016 and that the Respondent was paranoid giving further ammunition to his theory that her mental health had deteriorated? This is very concerning conduct considering the Respondent was admitted to the hospital involuntarily.

[166] Why did the Respondent have to take the bus home from the hospital after discharge in December 2016? The S. family ensured she had a ride to the hospital, but not a ride following discharge. The Respondent returned home from the hospital on December 15, 2016 and discovered that the Applicant and the children had moved back into the home. When she entered she was yelled at by the Applicant and told to leave. The police came to the home. After the police left, the Applicant gave the Respondent money for a hotel and said she could see the children the following day. The following day, however, the Respondent states that the Applicant refused to allow her contact with the children and, instead, he called the police and stated that the Respondent threatened to kill him. It is noteworthy that the charges were withdrawn in favour of a peace bond.

[167] The evidence presented to the court by Dr. Kurup is compelling and persuasive. Dr. Kurup, in a medical note dated February 18, 2021, stated that the Respondent’s mental health was stable. Dr. Kurup encouraged the Respondent to continue taking Sertraline for her mood while going through the trial and reducing the medication after the stress of the trial is over. Otherwise, Dr. Kurup noted good insight and judgement, intact cognition, with no delusions or thought disorders.

[168] The Respondent’s mental health issues, if any, in my estimation are more of a manifestation of the abuse she suffered throughout the marriage and the relentless pressure from the S. family to convince her and others that she had mental health deficiencies that impacted her ability to care for the children. I accept the evidence that the Respondent was abused throughout the marriage by the Applicant and his family. She was isolated, completely financial dependent, subject to name calling with little contact to her children in the first two years post-separation.

[169] There is no credible evidence to suggest that the Respondent’s parenting skills are in any way deficient. The report from Dr. Kurup indicated that she had no concerns. The parenting time visit notes do not question the Respondent’s parenting skills. Currently the Respondent exercises weekly parenting time with E.S. including unsupervised and overnight parenting and, generally, it is without issue.

Respondent’s Theory of the Case – Applicant’s Alienation

[170] Following the separation, the Respondent states that she was completely alienated from P.S. and had extremely limited contact with E.S. Prior to the separation she states that P.S. and she had a good relationship. However, from December 2016 until present, P.S. has changed.

[171] The evidence that the Applicant attempted to alienate the children from the Respondent is overwhelming and is set out below. Many of the Respondent’s allegations of alienation are corroborated by neutral, third- party evidence.

[172] During the OCL assessment, the Applicant was unable to identify a single positive thing about the Respondent. When asked at trial if the Respondent had any positive attributes, he offered two: 1) she can be friendly, at times, when taking her medication; and 2) she likes animals and that is a good thing.

[173] Ms. Krebs, a friend of the Respondent, describes a day where the Respondent showed her P.S.’s cell phone. The Applicant had texted his daughter: “How’s the psycho today?” P.S.’s response was: “Crazy as usual.” Ms. Krebs was not cross-examined.

[174] On November 29, 2016 the Applicant met with Dr. Kurup and the Respondent and he advised that E.S. (then 3 ½) hates his mother.

[175] On November 29, 2016, following the suicide attempt, JC&FS indicated they would provide supervised contact between the children and the Respondent. The Applicant opposed it and stated his opposition was because he did not trust JC&FS because the Respondent was receiving financial assistance from them. This was untruthful as discussions about providing the Respondent some financial resources did not occur until many months later. I conclude that his opposition was part of his attempt to eliminate the Respondent from the children’s lives. There was no contact between the children and the Respondent from December 2016 until February 2017.

[176] When interviewed by the CAS in December 2016, P.S. described her relationship with her mother as “pretty good most of the time.”

[177] In the CAS note recorded by worker, Ms. Elsner, on January 25, 2017, she had a meeting with the Applicant. During this meeting, in response to the worker stating that there was a need to move toward access, the Applicant stated that P.S. did not want to see her mother. With respect to E.S., the Applicant stated that E.S. was not asking about his mother, that he was scared of her, and that he was young. The Applicant stated that he felt he was protecting the children by not giving them access. He said that E.S. was happier.

[178] At the commencement of visits, supervised by the JC&FS from February 2017 through April 2017, P.S. always presented as angry, rude, and disrespectful. Her statements to her mother were cruel. P.S. also interfered with the parenting time the Respondent enjoyed with E.S. The Respondent states that the visits were sabotaged by the Applicant before they began by his coaching of the children and his alienating behaviour.

[179] At the children’s first visit with their mother following separation, on February 9, 2017, the JC&FS supervised access visit notes reveal that the Respondent was happy to see the children. When she went to hug the children, P.S. told E.S. not to hug his mother. P.S. presented as very angry and talked in an aggressive manner towards the Respondent. P.S. told the Respondent that nobody wanted anything to do with her. When the Respondent told P.S. that she loved her, P.S. responded that she hates her. When the Respondent told E.S. that she missed him, P.S. said that she did not miss them. E.S. stated that the Applicant told him to be mean to the Respondent at the visit. At the visit E.S. offered that the Respondent was not his mother and that the Applicant’s new girlfriend, L.O., was his mother. E.S. indicated the Applicant told him that. During the supervised visit E.S. stated that he was going to tell his father not to be mean to mommy. The Respondent provided E.S. with a t-shirt and a truck.

[180] In the case note of JC&FS worker, Ms. Gurwitz dated February 15, 2017, during a visit to the Applicant’s home where the Applicant was interviewed, he stated the Respondent does not know how to love and that the Respondent has threatened to kidnap the children many time. He stated to the worker: “Of course P.S. will agree with everything I am saying.” P.S. and the Applicant used remarkably similar verbiage. Both stated the following about the Respondent: a) she does not know how to love; b) she cooked meals that were raw; and c) she was going to kidnap them and kill them.

[181] P.S., during the OCL assessment, described her mother as “evil, devious, manipulative, selfish, and narcissistic.” She states that the Respondent is the meanest person in the world and not fit to care for a goldfish. By contrast the Applicant was described by P.S. as “loving, supportive, caring, hyper, funny.”

[182] On March 22, 2017 a JC&FS worker attended the home of the Applicant to meet with the children. The worker asked E.S. about the t-shirt given to him by the Respondent and E.S. stated that his dad split it in half and threw it in the garbage. He added that his father does not want him to have anything from his mother although he does not know why. When the worker asked the Applicant about the t-shirt he advised that it was causing P.S. pain and anxiety. The note says that the Applicant did not recognize the negative message he modelled to E.S. regarding his mother. The Applicant stated that the truck E.S. received from his mother was thrown away by E.S. (this is inconsistent with the access visit note dated March 24, 2017 where the workers noted how excited E.S. was to get the truck). When the worker explained to the Applicant that E.S. was aware he could not have any gifts from his mother, the Applicant did not recognize this and observed that it was funny that the Respondent was purchasing E.S. gifts. The worker expressed concern to the Applicant about the messaging to E.S. The Applicant responded that the Respondent was so toxic she brings everyone down around her. The Applicant, in his affidavit sworn December 6, 2018, denied ripping the t-shirt stating he removed it gently.

[183] At the access visit on March 23, 2017, supervised at JC&FS, the access supervisor’s notes reveal that P.S. did not respond when her mother said hello. E.S., when asked about the toy truck she gave him responded: “daddy said they can’t bring anything to their house.” The Respondent asked E.S. about the shirt she gave him at the last visit. Both E.S. and P.S. advised the Respondent that the Applicant ripped the t-shirt in half and threw it in the garbage. When cross-examined on the point, the Applicant stated that out of anger he got rid of it because even when the Respondent is not around she is creating problems. At this visit, P.S. screamed at her mother “what you wanted to kill yourself mom, and my life would have been better if you killed yourself.” When the Respondent stated “your life would have been better?”, P.S. responded “yes it would.” P.S. went from worrying her mother would die from suicide to wanting her mother to die in a three month period.

[184] At the JC&FS supervised access visit on April 4, 2017, the access visit notes reveal that P.S. kept saying that the Respondent was not her mother. E.S. then starting saying to the Respondent that L.O. was his mother. The worker noted that it appears as though the children have been told to say this as it is being said out of the blue. At the time E.S. stated it he was playing with the Respondent, laughing and talking.

[185] At the JC&FS supervised access visit on April 6, 2017 P.S. told the Respondent that L.O. was her mother.

[186] At the JC&FS supervised access visit of April 20, 2017, the access visit notes reveal P.S. advised the Respondent that she was going to get a restraining Order against her so she would not be able to go anywhere near her. The worker spoke with P.S. when her mother was out of the room telling her that she needs to stop this behaviour – that she is being really nasty with her mom and E.S. is saying L.O. is his mother. When challenged by the worker that a 13-year old does not threaten their mother with restraining Orders, P.S. said, oh yes they do. The note reads further that “It is very clear to this worker that the children come into the room with words to their mother that this sets the base of the visit.” Later the access supervisor writes: “It appears that by what the children say in the access room, that they are being said to say things, as again, there is no rhyme or reason as to why it is said at times, e.g. immediately upon entering room, they are both saying to mom that she is not their mother, L.O. is at the most in opportune (sic) times, no reasoning for it to come up – P.S. will often say I don’t even want to be here – don’t talk to me, you never cooked a day in your life – you gave us raw chicken – don’t look at me.”

[187] After eight supervised visits, the JC&FS recommended that the Respondent have visits with the children separately. The Applicant opposed this on the basis that “I remained concerned with the children’s safety visiting with J. alone, and with the level of conflict at those visits.” As a result, JC&FS declined to provide any further supervised visits. The case note from the JF&CS group planning session on May 24, 2017 states: “When the decision was made by the agency to separate the children in the visits, D. stopped all visits, stating that either both kids are coming or no one.” In the same note, the following is recorded: “E.S. and P.S. are both saying J. is not their mother and that D.’s girlfriend L.O. is their mother. E.S. is back to wearing pull-ups and having accidents. It is suspected that these are symptoms of not being able to see his mother.” Further along: “S. states that D. says it is very important for the children to see their mother, but believes he is putting on an act for us.”

[188] The Applicant’s position against separating the visits is perplexing. What safety issues are there at visits fully supervised at a child protection agency? The result of the Applicant’s refusal to have separate visits for the children was that JF&CS decided to close their file. I am confident, based on the evidence before me, that the Applicant opposed separating the visits because his alienation worked on P.S. and she was a foot soldier for him in his quest to alienate E.S. Upon closing their file, the JF&CS recommended: a) E.S. continue to see his mother; b) the Respondent have separate visits with the children; c) J. and P.S. do therapeutic work; and d) the Respondent to follow-up with her psychiatrist to ensure stability with mental health.

[189] The Applicant moved the children to Barrie and in with his girlfriend, L.O., in the summer of 2017. The Applicant did not advise the Respondent in advance. He did not provide her the address or telephone number where they lived.

[190] The Respondent states that after the JF&CS closed their file, she had had to bring numerous motions to secure any parenting time with the children. The motions were continuously obstructed by the Applicant.

[191] Justice Douglas, on October 2, 2017 ordered supervised access between the children and the Respondent to occur every Sunday for two hours supervised by SEC. The visits for each child were separate. Justice Douglas also requested the Office of the Child’s Lawyer assist.

[192] At the first visit, October 22, 2017, with E.S., E.S. refused to accept a dinosaur puzzle the Respondent brought to the visit. When pressed, E.S. explained that the Applicant told him not to accept anything.

[193] At the first visit, October 22, 2017, with P.S., when asked by the Respondent how she was, P.S. responded: “You don’t care anyway.” P.S. refused to engage with the Respondent, asked to leave early and asked to cancel all remaining visits.

[194] It is noteworthy that E.S. saw the Respondent, in 2017, a total of 12 hours.

[195] E.S. refused to attend the visit on February 25, 2018.

[196] E.S. refused to attend the visit on March 11, 2018.

[197] E.S. refused to attend the visit on March 25, 2018.

[198] The SEC put visits on hold on April 3, 2018 stating: “We are putting your family’s file on hold because we are a child-focused program and your child: E.S. has demonstrated that he does not want to come to the centre for visits. Until such time as E.S. is willing to come to the centre, we are unable to continue to provide service.”

[199] There was one last attempted visit at SEC and that was at the request of the counsel for the children, Ms. Karen Tobin. That occurred on May 6, 2018 and E.S. tried to run out many times.

[200] On July 19, 2018 I made a court Order that the children were to commence counselling with Joanna Seidel. The purpose of the counselling was to assist the children in dealing with issues they have with the Respondent. I also made an Order that access was to resume, supervised at Brayden. I made further Orders that both parties were to actively encourage E.S. and P.S. to have a positive relationship with the other parent and an Order that neither party speak negatively, or permit others to speak negatively, of the other party within earshot of the children, E.S. and P.S.

[201] Supervised access between the Respondent and E.S. at Brayden commenced July 24, 2018 and was to occur every Tuesday and Thursday. The first two visits on July 24, 2018 and July 26, 2018 went well. E.S. refused to attend visits thereafter.

[202] On August 2, 2018 E.S. refused to attend the visit. He was in the car with the Applicant and P.S. When the worker asked why he would not attend the visit, E.S. stated he did not like it when the Respondent chased him during a game of tag at the previous visit.

[203] On August 14, 2018 E.S. refused to attend the visit. This was the last visit at Brayden. Brayden refused to supervise the visits as E.S. was demonstrating opposition to the visits and there were many missed visits.

[204] On October 10, 2018 Justice Douglas ordered access to be unsupervised but, with access exchanges at Brayden. Justice Douglas also made the Order that access was to occur regardless of the opinions expressed by E.S. Brayden refused to complete the supervision of the access exchanges on the basis that the role of supervisor is non-interventionist and observational; E.S. was unwilling to leave the Applicant and attend the visit; and it was not child focused nor in their best practice to physically take a child from a parent. Accordingly, the managing director wrote: “I am not in agreement with Brayden Supervision’s Services being involved in a transfer where a child is being taken away from a parent, upset or screaming.”

[205] Despite the court Order of Justice Douglas ordering unsupervised parenting time, the Applicant’s then counsel, Ms. Lewis, wrote to the Respondent’s counsel, Mr. Zaslavsky: “…my client is not content that your client will be having unsupervised access with the child. My client’s proposal to ensure safety of the children, is for access to be supervised by the OCL, Ms. Karen Tobin, and/or the social worker assigned to the matter, Ms. Garbotti.”

[206] The parties returned to court as they were unable to agree on an exchange supervisor. The Applicant wanted one of his family members to supervise the exchange. The Respondent proposed a professional, Ms. Navy. On October 28, 2018 Justice Jarvis ordered the exchange supervisor be Ms. Navy. The Applicant and his family contend that she was not neutral and that she was biased.

[207] From October 2018 through 2020 Ms. Navy supervised the parenting time exchanges. It is noteworthy that S.S. the Applicant and Ms. R.F. requested she change her notes many times by adding specific things. The Respondent never asked for changes to the notes. S.S., the Applicant and Ms. R.F. have all alleged that Ms. Navy was biased. Ms. Navy is a professional and I was satisfied with her responses to questions under cross-examination. I do not believe she was biased in any way.

[208] On December 1, 2018 the Applicant contacted the police as a result of what he describes as a ‘concerning issue.’ The Applicant alleged that the Respondent undressed E.S. and took photos of him. The police investigated and no charges were laid. The JF&CS conducted an investigation as well and did not verify the concerns because E.S. contradicted the Applicant’s account.

[209] On December 12, 2018 Justice McGee heard an access motion. The Applicant describes this as addressing ‘one major issue’ which was a consent he signed regarding the Respondent’s parenting time that did not properly reflect what he thought he agreed to. He stated the discussions regarding parenting were confusing, he was stressed, and he had a number of lawyers that had represented him. Regardless, Justice McGee ordered parenting time three out of four weekends from Friday 7:00 p.m. to Sunday 7:00 p.m.

[210] The Applicant states that early on E.S. had a hard time, was acting out, would cry and refuse to attend. Over time, he states, things settled.

[211] The Respondent states that the Applicant still attempted to thwart her visits. The alienation of the children continued. The Respondent was accused by the S family of not following health restrictions and guidelines regarding Covid-19 for a year. Despite their protestations related to Covid-19, in November 2020, the Applicant, S.S. and P.S. all tested positive for Covid-19. E.S. and the Respondent did not. The Applicant initially blamed the Respondent for causing their illnesses. The Respondent missed out on parenting time with E.S. as he had to remain in quarantine.

[212] As stated, my Order dated July 19, 2018 included a provision that the children would forthwith commence counselling with Joanna Seidel. In the JF&CS case note dated January 1, 2019, Ms. Seidel advises child protection worker, Amanda Greene, that the Applicant cannot support a relationship between the children and the Respondent as he finds it harmful to them. Further, she confirmed that it was really hard to do reintegration therapy under the umbrella of the Applicant’s concerns.

[213] After a handful of sessions, the Applicant changed the counsellor. He did not get the consent of the Respondent nor did he go to court to change the Order. In her report dated April 17, 2019, Ms. Seidel states that the Applicant vehemently stated that he believes it is not in the best interests of the children to have a relationship with their mother and reported concerns over the children’s safety while in her care.

[214] The Applicant was asked by Ms. Seidel to bring P.S. in for more regular and consistent appointments. He stated that P.S. no longer requires therapy and the Judge had supported this in writing in 2018. This was not true.

[215] Ms. Seidel states that “Overall, Mr. S. was not in support of child or family therapy to overcome contact problems between the children and their mother.” I find this description accurate.

[216] In October 2018 Ms. Tobin, OCL, and the JC&SF worker, Ms. Greene, had a conversation as part of the child protection investigation. The case note indicates that in interviews P.S. “sounds rehearsed and repetitive; there’s no departure from the script. When asked for examples, she always gives the same one incident.” Ms. Tobin noted that P.S. speaks in generalities without description or details. “It is her (Ms. Tobin’s) belief that dad is trying to make a wall around the kids – why would P.S. not want to talk to her lawyer? She’s suppose to be her voice and she has a very clear opinion; you’d think she’d want to be heard. There’s no real evidence, but she’s very aware of the litigation.” In referencing the Applicant: “He lies – he manipulates people.” “More recently he told police that CAS gave him custody of the children. This was not true.” And, finally, Ms. Tobin advised: “…she felt that there was alienation and that the kid’s thoughts were not independent.” The conclusion of the CAS investigation, as noted in the case note of October 26, 2018:

“Case came in as a 31B after J. called in saying that the children are being abused at the hands of their father. Amanda has met with both children, with parents, and has spoken to quite a few collaterals involved in the file as it is currently very active before the courts. Since we began our involvement J. was granted unsupervised access with E.S. which dad did not comply with. Mom brought this back to court and there is suppose to be a visit on Saturday. Amanda has spoken to collaterals and the OCL, and this file is flagged as alienation (which would fall under the CP mandate).”

I agree with the conclusions of both Ms. Tobin and the JC&FS.

[217] The Applicant states in his evidence that by the fall of 2018 he was feeling frustrated with the OCL. He states they were changing their opinions and wanting to meet with E.S. at school privately. He requested a new lawyer. In a letter to the Applicant dated November 15, 2018 the OCL stated:

“After meeting with the children once, Ms. Tobin requested the assistance of a clinician because she had concerns about the independence of the children’s views and preferences. She noted that P.S. read from a script setting out all of the reasons why she wanted nothing to do with her mother, including events that transpired when she was very young. When Ms. Tobin and Ms. Garibotti met with E.S., he told them that the Applicant and P.S. told him what to say.”

[218] At the Applicant’s home, P.S. was being interviewed by the OCL clinician, Ms. Garibotti, when Ms. Garibotti saw the Applicant sitting at the top of the stairs. When P.S. noticed she was distracted, Ms. Garibotti said someone was at the top of the stairs. The Applicant then moved. The Applicant says he did hear part of the interview, but he was just calming the dog.

[219] During the OCL assessment E.S. was disrespectful towards his mother. During the OCL observation, the Applicant was found to be controlling the interactions between the family members. The clinician was concerned that E.S.’s responses were modeling the Applicant’s manner of communication which was dismissive of and disrespectful of females.

[220] Karen Tobin successfully brought a motion, heard February 15, 2019, on behalf of the OCL to be removed as counsel for the children because their views and preferences were not neutral and independent.

[221] In the OCL report of clinician Kim Heim’s she states: “Based on the negative perception of Ms. S. held by Mr. S. and Ms. S.S., and P.S.’s comments, it is evident that P.S. is not being encouraged to have a relationship with Ms. S.” I agree with this description.

[222] The text message exchange between the Respondent and P.S. on New Years Eve, December 31, 2018 is illustrative:

Mom: Just want you that I am thinking of you this New Years Eve. I love you so much and wish you nothing but the best that life has to offer in 2018 [sic] and always.

P.S.: Who is this?

Mom: This is your mother

P.S.: I think you have the wrong number

Mom: I love you P.S. that’s all you need to know

P.S.: I don’t know who this is and you better stop contacting me. My mother is with me now.

Mom: She is not your mother I am

P.S.: I am telling my parents and calling the police on you.

[223] On January 15, 2019 the Applicant alleged to JC&FS that the Respondent was not feeding E.S. at parenting time visits and she was hitting him. The allegation was not verified.

[224] The Applicant suggests that the estrangement between P.S. and the Respondent is multi-faceted and includes being exposed to the Respondent’s suicide attempt of December 2016 and her subsequent removal from the home by police and paramedics where she was involuntarily admitted to MacKenzie Health pursuant to the Mental Health Act. It is curious, then, that in Ms. Navy’s access note of November 12, 2018 the Applicant stated he could have a two-minute conversation with P.S. during which he could convince her to speak to her mother.

[225] As stated, the evidence of alienation is overwhelming. The Applicant struggled to say anything positive about the Respondent. He has repeatedly professed that the children are better off without the Respondent in their lives. The Applicant permits P.S. to make decisions about her contact with the Respondent and he has reinforced that it is not in E.S.’s best interests to see his mother. Gifts to the children from the Respondent are not permitted in the Applicant’s home and are destroyed or removed from the home. The Applicant has demonstrated little to no concern over the infrequency of contact between the children and their mother and opposed parenting time and make-up parenting time continuously. The Applicant provided no evidence that the children’s rude and disrespectful behaviour to the Respondent was ever admonished or corrected. The Applicant made false allegations to the police and child protection authorities alleging sexualized pictures of E.S. I find the report to be false because the Applicant was not present and E.S., when interviewed, completely contradicted the Applicant.

[226] The children’s actions demonstrate alienation. P.S. views the Applicant as all good and the Respondent as all bad. P.S., in particular, vilified and targeted the Respondent at parenting time visits. P.S. speaks openly about the Respondent’s shortcomings particularly with respect to cooking and cleaning. Both children have reported being told what to say. It is reported that the comments made by the children are scripted and out of context. I am satisfied, on all of the evidence before me, that the Applicant engaged in conduct meant to alienate the children from the Respondent. I find that we was successful in alienating P.S. from the Respondent. I find that he was not yet successful in alienating E.S. from the Respondent.

Law

[227] Both parties, in their pleadings, have claimed relief under the Divorce Act (hereinafter “D.A.”) and the Children’s Law Reform Act (hereinafter “CLRA”). I have considered that where federal and provincial legislation both apply, federal legislation is paramount. I have also considered section 27 of the CLRA which provides for a stay of any application for parenting upon commencement of an application for Divorce. Accordingly, I have considered the parties’ claims for decision-making, parenting time, and child support pursuant to the provisions in the D.A. as both parties were married and have claimed relief corollary to their claim for divorce. It is noteworthy that the test for decision-making and parenting time in both the D.A. and the CLRA is best interests.

[228] The relevant provisions of the D.A. are:

Best interests of child

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.

Primary consideration

(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.

Factors to be considered

(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.

Factors relating to family violence

(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.

Past conduct

(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.

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.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Parenting time — schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Contact order

16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.

Interim order

(2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.

Leave of the court

(3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.

Factors in determining whether to make order

(4) In determining whether to make a contact order under this section, the court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.

Contents of contact order

(5) The court may, in the contact order,

(a) provide for contact between the applicant and the child in the form of visits or by any means of communication; and

(b) provide for any other matter that the court considers appropriate.

Terms and conditions

(6) The court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Supervision

(7) The order may require that the contact or transfer of the child from one person to another be supervised.

Prohibition on removal of child

(8) The order may provide that a child shall not be removed from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Variation of parenting order

(9) If a parenting order in respect of the child has already been made, the court may make an order varying the parenting order to take into account a contact order it makes under this section, and subsections 17(3) and (11) apply as a consequence with any necessary modifications.

Parenting plan

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

Definition of parenting plan

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

[229] In considering what is in the best interests of E.S. and P.S., I have considered all the factors set out in Section 16(3) of the D.A.

The Child, P.S.

[230] Pursuant to section 16(3) of the D.A., P.S. is almost 18 and will be attending York University in the fall. Time has overtaken the issue of parenting time and decision making for P.S. However, P.S. is still only 17. The Court in A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ontario Superior Court)stated at paragraphs 97 and 98:

97 Dr. Fidler testified that long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70% of the individuals studied. Two thirds of the same population became divorced themselves – a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives and difficulties trusting other people. One third were reported to have substance abuse problems. Fifty percent of this group in this study became alienated from their own children.

98. Dr. Fidler also testified that the study in question found that the bulk of those involved had wished that “someone had called them on their strong wishes and statements not to see the other parent”, but that they could not do it themselves. They could not reverse their public stance against the alienated parent, but wished someone else would make the decision for them that they had to see that parent. That way, the child could “save face”.

[231] Accordingly, and despite her age, I am making an Order for reunification therapy between P.S. and the Respondent as this is likely the last opportunity to reverse the alienation.

The Child, E.S.

[232] The needs of E.S. are considerably different than that of his older sister P.S.

[233] Pursuant to section 16(3) (b) of the D.A., E.S. is only eight. He requires an attentive parent that will make decisions in his best interest. There is no doubt that E.S. needs stability and a final determination of the parenting issues after almost five years post separation.

[234] Pursuant to section 16(3) (b) of the D.A., E.S. has a strong relationship with P.S. E.S. also has a strong relationship with the Applicant and the paternal grandparents. He has lived with them for many years of his life. Although P.S. will be attending university in the fall and there is a significant age difference, that does not diminish the connection between P.S. and E.S. It is the nature of the relationships that he has with the Applicant, S.S. and P.S. that concerns the court. Unknown to him, perhaps, the very people that claim to act in his best interests do not as they are participants in the Applicant’s attempt to alienate E.S. from the Respondent. E.S. is now travelling freely and enjoying parenting time with the Respondent.

[235] Pursuant to section 16(3) (c) of the D.A., the clear evidence before the court was that the Applicant and his family do not support a relationship between E.S. and the Respondent. Not only does the Applicant not support the relationship between E.S. and the Respondent, his actions have attempted to alienate E.S. from the Respondent. Further, alienation is abuse. It is not in the best interests of E.S. to reside primarily with the Applicant and to continue to be exposed to harmful messages regarding the Respondent from the Applicant, P.S. and S.S. There were no demonstrations of remorse at trial, no indications that there has been any insight, and I have no confidence that there would be any material change of attitude or action in the future. I am satisfied that the Respondent, however, will foster a relationship between E.S. and the Applicant.

[236] Pursuant to section 16(3) (d) of the D.A., I am satisfied that before the separation the Respondent was the primary caregiver to E.S. Following the separation, it was the Applicant that primarily cared for E.S. I am satisfied that the Respondent provided adequate care for E.S. while in her care before separation. I am not satisfied that the Applicant, by virtue of his alienating behaviour, provided adequate care to E.S.

[237] Pursuant to section 16(3) (e) of the D.A., despite E.S.’s age, his independent views and preferences were not neutral and independent and, accordingly, his views and preferences could not be ascertained.

[238] Pursuant to section 16(3) (f) of the D.A., E.S. is being raised in the Jewish faith. There were no other cultural, linguistic, or spiritual factors raised.

[239] Pursuant to section 16(3) (g) of the D.A., both parties provided adequate plans for the care of E.S.

[240] Pursuant to section 16(3) (h) of the D.A., the Applicant has, by virtue of his efforts at alienation, established that he is unable or unwilling to put E.S.’s best interests first. Encouraging E.S. to be disrespectful to the Applicant, withdrawing E.S. from court ordered counselling, and interfering in E.S.’s ability to have his independent views and preferences available to the court are obvious examples.

[241] Pursuant to section 16(3) (i) of the D.A., the Applicant, with whom the children have resided since separation, has not communicated and cooperated with the Respondent. He moved the children’s school and city without notice to the Respondent and he changed the children’s court ordered therapist all without communicating same to the Respondent. While the Respondent has not fully engaged with using Our Family Wizard, I accept her evidence that she is learning the tool and will better utilize it going forward.

[242] Pursuant to section 16(3) (j) of the D.A., the Applicant engaged in family violence against the Respondent when he pushed and shoved her and spat on her. The Applicant engaged in family violence when he threatened the Respondent with the loss of her children. The Applicant engaged in family violence over many years with a pattern of behaviour that was controlling of the Respondent. The Applicant engaged in family violence when the children were subjected to his sustained efforts to alienate them from the Respondent. The family violence was extremely serious and occurred over many years. The children were exposed to the family violence, aforementioned, to their detriment.

[243] Having considered all of the factors set out in section 16(3) of the D.A. and giving primary consideration to E.S.’s physical, emotional and psychological safety, security and well-being, E.S. shall reside primarily with the Respondent and it is she who shall have authority over all major decisions for E.S.

[244] I have considered section 16(5) of the D.A. and note that there is no presumption of equal parenting time. Rather, E.S. should have parenting time that is consistent with his best interests.

[245] The Respondent proposes that there be a hiatus in contact between E.S. and the Applicant for a period of 90 days to permit E.S. to settle. Thereafter she proposes that parenting time be every other weekend as well as a sharing of holiday time. There is no clinical evidence before me to suggest that a 90 day hiatus is in E.S.’s best interests. I also note that despite the Applicant’s efforts, E.S. is not, yet, an alienated child. P.S. is clearly alienated. E.S. now moves freely between the parties’ homes and the evidence suggests that he is content and happy to enjoy parenting time with both parents.

[246] I have considered the parenting plans submitted by each party. I am concerned that any parenting time with the Applicant, unsupervised, will expose E.S. to further alienation. On the other hand, I am concerned that E.S. will suffer if he has limited contact with the Applicant, his sister and his paternal grandparents. Any supervised contact would unduly limit the time E.S. has with the paternal family. Sadly, there is no one on the paternal side that was identified to me that was not in some way implicated in the alienation. In considering the best interests of E.S. I have concluded that a more limited quantity of parenting time with the Applicant, in addition to Orders that preclude disparaging the Respondent, will mitigate the risk. I have decided to have the Applicant’s facetime with E.S. supervised with the balance of his parenting time unsupervised.

[247] In terms of the restraining Orders requested by both parties, I am not satisfied, on the evidence before me, that a restraining Order is necessary. Neither party introduced evidence of fear. Neither party addressed the restraining Order in their submissions.

[248] In terms of child support for P.S., there shall be no child support payable by the Respondent to the Applicant and no section 7 expenses payable by the Respondent to the Applicant as a result of the unjustified repudiation of the relationship by P.S.

[249] In terms of child support for E.S., the Applicant is a social worker and is currently providing counselling to children. The irony is not lost on me. His Financial Statement indicates he earns $40,203 in income per annum. Child support shall be as set out in the Child Support Guidelines for this level of income.

[250] Based on the findings of fact as set out herein, the rejection of the Applicant’s proposition that the Respondent has mental health issues and parenting deficiencies, and the acceptance of the Respondent’s proposition that the children have been alienated, I make the following Orders in the children’s best interests.

Order

1. The Applicant shall arrange and encourage, at his expense, reunification therapy between P.S. and the Respondent.

2. The Respondent shall have exclusive authority over major decision-making for the child E.S.

3. Day to day decisions shall be made by the parent with which E.S. resides at any given time.

4. E.S. shall reside with the Respondent primarily, subject to the Applicant’s parenting time, as set out herein.

5. From the release of this decision, until the end of school, in June 2021, E.S. shall reside exclusively with the Respondent and there shall be no face-to-face contact with the Applicant or his family. During this period, E.S. will have Facetime with the Applicant, supervised by the Respondent, on Tuesdays, Thursdays and Saturdays at 6:00 p.m. for no longer than one hour.

6. In terms of summer parenting time, commencing on the first Monday following the last day of school in June 2021, E.S. shall have week about parenting time with both parents. The first week shall be with the Applicant. The week commences and ends at 9:00 a.m. on Mondays. Week about parenting stops such that the last full week before school commences in September 2021 E.S. is with the Respondent.

7. Summers in each subsequent year will also be week about on the same terms and conditions as set out in paragraph 6 above.

8. Commencing the first weekend after the commencement of school, and every other weekend thereafter, E.S. shall have parenting time with the Applicant from Friday after school until Monday morning with drop off at school.

9. The following holidays shall overtake the regular schedule and be shared as follows:
   a) Erev Roshannah – from after school until 8:00 p.m.; E.S. shall be with the Applicant in odd numbered years, and with the Respondent in even numbered years;
   b) Roshannah – all day until 8:00 p.m.; E.S. shall be with the Respondent in odd numbered years, and with the Applicant in even numbered years;

c) Erev Yom Kippur – from after school until 8:00 p.m.; E.S. shall be with the Respondent in odd numbered years, and with the Applicant in even numbered years;
d) Yom Kippur – from all day to 8:00 p.m.; E.S. shall be with the Applicant in odd numbered years, and with the Respondent in even numbered years;

e) First Evening of Passover – from after school to 8:00 p.m.; E.S. shall be with the Applicant in odd numbered years, and with the Respondent in even numbered years;

f) Second Evening of Passover – from after school to 8:00 p.m.; E.S. shall be with the Respondent in odd numbered years, and with the Applicant in even numbered years;

g) The parties shall split the March Break equally such that whoever the child resides with the weekend before the commencement of March Break shall have the first half of March Break to Wednesday at 12:00 noon; and E.S. shall be with the parent that has the weekend following March Break from Wednesday at 12:00 noon until the end of the weekend parenting time;

h) The Applicant shall have E.S. in his care every Father’s Day from 9:00 a.m. through to 8:00 p.m; and

i) The Respondent shall have E.S. in her care every Mother’s Day from 9:00 a.m. through to 8:00 p.m;

10. E.S. may Facetime the parent with whom he is not residing on Tuesdays and Thursdays at 6:00 p.m. Any Facetime between E.S. and the Applicant shall be supervised by the Respondent.

11. All pick-ups and drop offs shall be at school. When there is no school, the pick-up and drop-offs shall be the responsibility of the Applicant and he shall collect and drop off E.S. at the Respondent’s residence.

12. Commencing July 1, 2021 and on the first of every month thereafter, the Applicant shall pay to the Respondent $360 in monthly child support for E.S. based on his reported income of $40,203.60.

13. Section 7 expenses for E.S. shall be shared by the parties proportionately in accordance with their incomes.

14. SDO to issue.

15. There shall be no child support payable to the Applicant for P.S. and there shall be no section 7 expenses payable to the Applicant for P.S.

16. E.S. shall not permanently be removed from York Region without the written consent of the parties or a court Order.

17. The Applicant and the Respondent are entitled to request and receive information about E.S.’s well-being including obtaining information directly from health and education service providers.

18. The Applicant shall not disparage the Respondent in any way in front of E.S. nor shall he permit anyone else to speak to E.S. about the Respondent in a disparaging way.

19. Evidence of the Applicant’s alienation post this decision may very well constitute a material change in circumstances.

20. The Applicant’s request for a restraining Order is dismissed.

21. The Respondent’s request for a restraining Order is dismissed.

22. If the parties cannot agree on the issue of costs regarding this trial, I shall consider the request for costs. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, her written submissions, limited to five pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, his written submissions, limited to five pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.

Justice G.A. MacPherson

Date: June 11, 2021