Court File and Parties

COURT FILE NO.: FS-19-10408 DATE: 2021-07-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tomy Stavropoulos Applicant

– and –

Betty Stavropoulos Respondent

COUNSEL: William Harvey Abbott, for the Applicant Emilio Bisceglia, for the Respondent

HEARD: June 15, 2021

BEFORE: Papageorgiou J.

Reasons for Decision

Nature of the Motion

[1] The Applicant, Tomy Stavropoulos (“Tomy”) brings a motion for:

(a) An Order requiring his 15-year-old daughter Maria Vasiliki Stravropoulos (“Maria”) to attend counselling and reunification therapy with Andrea Barclay, or such other professional this Court considers appropriate;

(b) An Order that the costs of this therapy be shared equally at first instance but that if necessary, Betty bear the full cost of reunification therapy; and

(c) An Order requiring Maria to reside equally with each parent commencing July 16, 2021.

[2] Betty asserts that there is no clinical evidence or assessment in support of Tomy’s position. As well, Tomy has been residing in the same house as Betty and the children for the nine years since the separation and never raised any issues of parental alienation until the parties began discussing selling the house which would result in them residing apart. Critically, at this point, if parenting is not shared equally, Tomy’s child support obligations will be greater and Betty asserts that this is what is driving Tomy’s urgent application.

[3] For the reasons that follow, I am dismissing the motion for reunification therapy. The motion is unsupported by any expert evidence as to what constitutes parental alienation and whether conduct displayed by Betty constitutes alienation. Furthermore, there was no detailed proposal for therapy or any consideration of whether such therapy would improve or harm Tomy and Maria’s relationship, or possibly harm Maria. Indeed, without any proposal as to what such therapy would entail it is impossible to consider whether it would be in Maria’s best interests.

[4] Regarding Tomy’s request that Maria reside with him, I am also dismissing that request and ordering that Tomy may have parenting time with Maria at certain specified times, but that it is subject to her wishes. For clarity, if at any time Maria does not want to have parenting time with Tomy on these scheduled days, then she does not have to.

Overview

[5] The parties were married on May 19, 1991. They have two children Nicholas Athanasios Stavropoulos, born […], 1997 (“Nicholas”), and Maria Vasiliki Stavropoulos, born […], 2006 (“Maria”), who is currently 15 years old.

[6] According to Tomy, the parties separated on or about December 25, 2013. According to Betty, the parties separated on October 16, 2011. Nothing turns on this dispute for the purposes of this motion. Since their separation, they have remained separate and apart but have continued to do so in the jointly owned matrimonial home. They have now sold the matrimonial home and the closing is taking place on July 6, 2021. After that, the parties will no longer be residing in the same home. Tomy will move to his parents’ home.

[7] The current divorce proceeding began in 2019. Tomy first raised the issue of parental alienation at the first case conference before Diamond J. on March 2, 2020. Justice Diamond requested the assistance of the Office of the Children’s Lawyer (“OCL”), which declined to assist.

[8] Tomy again brought a motion seeking counselling/reunification therapy on November 17, 2020 before Boucher J. In her November 19, 2020 endorsement, Boucher J. held that this issue could not be heard on its merits without Maria’s input and ordered her views and preferences with respect to parenting and family therapy to be ascertained.

[9] Tomy and Betty jointly retained Ms. Shira Osher, a social worker and therapist, to interview Maria and prepare a Voice of the Child Report (the “VOC”), which is dated January 8, 2021.

Parental Alienation

[10] Parental alienation is defined as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship”: Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097, at para. 3, citing Barbara Jo Fidler and Nicholas Bala “Guest Editors’ Introduction to Special Issue on Alienated Children in Divorce and Separation: Emerging Approaches for Families and Courts” (2010) 48:1 Fam. Ct. Rev. 6 at 6. It can occur as a mere “side-effect of the breakdown of a relationship, but can also occur because of deliberate actions, both direct and indirect, on the part of a parent”: Williamson v. Williamson, 2016 BCCA 87, 395 D.L.R. (4th) 510 (“Williamson”), at para. 39.

[11] It is important to distinguish parental alienation from estrangement. Alienation occurs when there is no objective reason for a child’s rejection of a parent; however, estrangement occurs “when the child understandably refuses contact with a parent because of that parent’s behaviour, and there is a logical and rational reason for the child’s rejection of the parent”: Williamson, at para 41.

[12] It is also important to understand that parental alienation is not only a complaint relevant to a parent’s position in the litigation. Parental alienation is a mental health issue from the perspective of the child as well. In Fielding v. Fielding, 2013 ONSC 5102 (“Fielding”), at para. 165, the Court concluded that “parental alienation is a form of emotional abuse with potential long term negative repercussions for the child,” referencing A.G.L. v. K.B.D. (2009), 2009 943 (ON SC), 93 O.R. (3d) 409, at paras. 97-98:

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. This way, the child could “save face”.

[13] Some courts have concluded that parental alienation is such a serious allegation that expert evidence is required to support (1) a finding of alienation on the part of either party; and (2) responses, including a family reunification program, were in the best interests of the children. In Williamson, at paras. 47-48, the Court found:

[47] Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties. Further, as described above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a long term impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supported with admissible expert evidence. […]

[48] Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and to support that the FRRP was in the best interests of the children.

[14] Orders for reunification therapy are to be made sparingly, there must be compelling evidence that the therapy will be beneficial and there must be a detailed proposal identifying the proposed counsellor and what is expected: Testani v. Haughton, 2016 ONSC 5827, at para. 18.

[15] Further, as the child becomes a teenager, remedial options, if there is alienation, become increasingly limited: Williamson, at para. 44.

[16] As noted above, in this case, Tomy has provided no expert evidence on what parental alienation is and the factors which demonstrate that it has occurred, but there are many cases where courts have set out and applied relevant considerations based upon expert evidence. In Fielding, at para. 135, the Court relied on the indicia from Dr. Baker, an expert in parental alienation:

[135] Part of the generic report listed 17 alienating strategies which foster unjustified rejection of the other parent and eight behaviours displayed by an alienated child. These are derived from Dr. Baker’s research with parents who, based on their reports, she concluded had been alienated as a child. Dr. Baker’s opinion is that parental alienation is established if:

• there was a prior positive relationship with the targeted parent;

• there is an absence of abuse by the targeted parent;

• there is use of many of the alienating strategies; and

• the child exhibits most of the alienated child experiences.

[17] With respect to the fourth factor, the Court in Fielding set out a number of relevant behaviours that are exhibited by alienated children, at para. 143:

[143] Dr. Baker’s opinion is that if the court finds the use of many alienating strategies by a parent in a particular case, then the court will be able to differentiate alienation from non-alienation by determining whether the child displays most of the eight behaviours […]

• Campaign of denigration of targeted parent;

• Weak, frivolous and absurd rationalizations for rejection of targeted parent;

• Lack of ambivalence about alienating parent;

• Child professes decision to cut off parent as child’s independent decision;

• Absence of guilt about treatment of targeted parent;

• Reflexive support of alienating parent in parental conflict;

• Presence of scenarios borrowed from alienating parent; and

• Rejection of targeted parent’s extended family.

[18] Essentially, there is a two-part test for when parental alienation is claimed:

(a) Is there parental alienation?; and

(b) If so, what is the appropriate method of responding to the alienation that is in the child’s best interests; if that recommended method is counselling, then the party seeking counselling must provide a detailed proposal from a proposed counselor outlining what is expected, costs, requisite consents and other information pertaining to the therapy: Testani.

Evidence of Alienation

[19] The evidence cited by Tomy that Betty has alienated his daughter from him is mostly his subjective views of his relationship with his daughter and his conclusion that his relationship issues must have been caused by Betty’s alienation. He cites the following specific examples:

a) Maria recalls an event from before she was born about Betty being stuck in a snowstorm where Tomy did not pick her up. He says it must have been because Betty told her and that this shows that Betty has been regularly talking about him to the children. The fact that Maria knows of one thing that happened before she was born does not mean that Betty told her or that it was told in order to alienate her;

b) On one occasion, Tomy came home at 4:40 p.m. and asked Betty and Maria where they were going as he had planned to take Maria to the park. Betty then asked Maria whether she wanted to go with him or her. Tomy says that made Maria uncomfortable. After the incident, Betty sent Tomy a text which said: “For ten years you neglected these kids. Now they are old enough to decide for themselves. Stop messaging me.” In my view, Betty’s question to Maria was an appropriate question to ask, leaving it up to Maria when her parents’ plans conflicted.

c) Many years ago, Tomy was not consulted on the high school Maria would attend. In my view, an engaged parent would be taking the initiative to have these discussions when the time for high school came and would not wait to be consulted.

d) When they used to attend church, Tomy would drop them off and park. Then when he returned, they would not have saved a spot for him and he would have to sit separately. If true, this was inconsiderate of Betty, but I do not find that it rises to the level of alienation.

e) In 2013, Tomy had an incident with his son who heard Tomy say something in a conversation with Tomy’s parents. Tomy thought his son was wearing headphones and could not hear. Thereafter, his son refused to attend functions with him because of what he had heard. The son was 16 years old and Betty said she respected his wishes and did not encourage him to attend. However, because Maria was only seven years old at the time and looked up to her brother, she decided she would stop attending too. Therefore, Tomy feels that Betty should have forced her son because not doing so was effectively permitting Maria to refuse to attend these events. In my view, Betty cannot be responsible for whatever the son heard which made him refuse to attend these events and Betty did not do anything improper or alienating by not forcing him. The fact that the son’s absence made Maria not want to attend is not Betty’s responsibility.

f) Betty refused to provide Tomy with a school photo of Maria. Tomy was apparently leaving it up to Maria or Betty to order pictures and deliver them to him rather than being an engaged parent who participates in that process. He could also have asked Maria for one.

g) Maria has not called Tomy “Dad” or another name for father for many years and Betty has never reprimanded this behaviour. Again, Tomy was living with Maria for her entire life. He could have had discussions with Maria about what she called him. Betty cannot be responsible for this.

h) In 2013 and 2014, Betty did not provide contact information when she would take the children on vacation. The text message Tomy attached in support of the 2014 complaint shows that Betty and Tomy had a conversation in which he asked for the details and she said, “Didn’t you get the contact information from both kids?” She told him she did not have the number but would give him the travel agent’s number and email the travel agent to release the information. Tomy advised that this did not satisfy him and that she must provide the information directly. I see nothing wrong with Betty’s conduct on this occasion.

i) Betty would leave notes on the table which Tomy says were passive aggressive because the notes would inform him that they were going out but did not specify where or when they would be back. He has attached four such notes. I have reviewed them and I see nothing passive aggressive about them. In fact, it was respectful for Betty to leave notes advising Tomy of where they were going.

j) On July 8, 2015 there was a note left for him which said “IMPORTANT NOTICE…Nicholas, Maria and Betty “do not approve of anyone going into their private space” and their bedrooms are “off limits for anyone coming to our house.” This note is troubling, but in the context of all the evidence is insufficient.

k) Betty called Tomy an absentee father in front of the children and said that he never cared for them. Tomy said that Betty called him a loser and a psycho, said that he should go back to his mother who is his “girlfriend”. He also alleges that she said that he was a cancer, that his head should be chopped off and that he wished Maria had never been born. This would be inappropriate if true.

[20] He provides very little supporting evidence other than a few dated texts and copies of notes which I have not found compelling. As well, Tomy has produced his diary from 2014 and 2015 where he kept notes of things related to the children. Importantly, these detailed notes provide very little evidence in support of alienation by Betty apart from his notations that he would arrive home at times and find that no one was there. He recorded only a few instances during those years where Betty said anything negative to him or there was conflict in front of the kids. This is hardly a campaign of denigration. Given that he was taking detailed notes, if this had been a common occurrence, I would have expected more instances of this kind of behaviour recorded. As well, at this time they were separated. There was nothing wrong with Betty taking the kids out without him. He could have done the same.

[21] Importantly, Betty denies his allegations. She says that during their marriage Tomy simply was not around and did not work on developing a relationship with the children; he has reaped what he has sown. She supports his relationship with the children and asserts that if he made more effort, he would be successful. Indeed, when they separated, she agreed that they continue living in the matrimonial home together in part so the children could maintain their relationship with him and they have been doing so for the last nine years. He has had full access to the children, but he does not engage in positive steps to engage with them. He leaves the home daily without a word even though his business is not operating due to COVID-19 and returns at 9 p.m. He keeps to himself when at home and most comments are sarcastic or upsetting to the children. He loses his temper with Maria quickly and calls her a “mean girl” and asks, “what’s your problem?” He never participated in school interviews. He only once looked at Maria’s report card. He never attended her medical appointments, etc.

[22] One independent piece of evidence before me which is of assistance in this regard is the VOC report. While the VOC report does not purport to address whether parental alienation has occurred, there are many statements made by Maria which support that Tomy was an absent father and/or does not have the necessary parenting skills and that this is the reason for the issues in his relationship with his children. Maria made the following statements:

a) Her father “is not around a lot” and that he has “never been involved.” She does not discuss her activities with her father and he does not inquire about them.

b) She rated her closeness to him as 2/10.

c) Her father does not participate in activities such as making meals, homework or house chores.

d) The last time she spent time with her father was during the summer when he threw a ball for about ten minutes and then returned to the house to watch television and relax.

e) Their conversations involve small talk. It involves mostly “random stuff” like texts where he writes “Go Jays Go” or asks, “How is Harry?” (referring to a band member from One Direction, a band she likes).

f) Maria said she was sad and at times angry that she does not have an involved father who gives her more attention. She “wished it was different” but does not know how it could change. She had some feelings of sadness and anger in the past but had grown to accept the situation.

g) When asked if she believes that her father cares for her, Maria said that “he would care if something major happens like she was sick but that he does not care about other aspects of her life.”

h) When asked whether her mother had helped or hindered their relationship, Maria said that her mother had not discouraged or encouraged it. She also said that her mother had attempted to facilitate a relationship between her and her father in the past but he had chosen not to be involved when the opportunity presented itself often as they shared the same home.

i) Maria said that while she is disappointed with that her father has not been an involved and attentive parent, she has come to terms with the situation.

j) When asked, she denied that anyone had told her what to say and that what she had expressed were her true feelings.

[15] Although Tomy faults the VOC assessor for failing to follow up and try to unearth deeper meanings, in my view the meaning is clear. Maria and Tomy have not previously had a close relationship and it is largely because of Tomy’s lack of effort and interest or possibly his inability to connect with Maria. In my view, Tomy has failed to satisfy the high threshold for establishing parental alienation for the following reasons:

a. Maria does not display the behaviours of alienated children set out in Fielding above. She is stable, eloquent, intelligent, without ambivalence, without strong emotion and consistent in her views. She has not engaged in any campaign to denigrate Tomy. There is no evidence that she has borrowed impressions of Tomy from Betty. There is no evidence that Maria has had conflicts with Tomy or has rejected him, wishes to cut him off or that she has any animus towards him. She is not afraid of him and is not nervous to speak to him. Even Tomy’s affidavit shows that she does not bear him ill will. Tomy notes that Maria still leaves smiley faces and writes “thank you” in notes that her brother or Betty leave on the counter for him. He concludes that this shows that she cares enough to make these small efforts for him.

b. While Maria does concede that there are issues in her relationship with her father, Maria’s statements contained in the VOC Report above do not support that Betty is the cause. Maria’s statements support that Tomy has failed to build a relationship with Maria.

c. There is no persuasive evidence of a prior positive relationship between Maria and Tomy apart from Tomy’s bald assertion. He has not led evidence of any special bond other than regular duties like driving her to school and medical appointments when he could. He does not discuss any special vacation or quality time spent with her and in fact has not had a vacation with the children since 2010.

d. Tomy has not provided any significant evidence of attempts he has taken to connect with Maria where she refused to engage during the last nine years when he has been living with her. Notably, part of this time was during the COVID-19 lockdown when families had to stay at home — this gave him multiple opportunities to work on his relationship and he has provided no evidence of efforts he took in this regard during this time.

e. Although it may not be required in every case, given the contested record before me and the weak evidence of alienation, it is significant that Tomy has not provided any expert evidence or other persuasive evidence to demonstrate that there is alienation on the part of Betty. At the most, I have before me competing and contradictory affidavits from Tomy and Betty which have not been tested by cross-examination. In this case, in the absence of expert evidence, “there is no more reason to find alienation on the part of [Betty] than there is to find estrangement arising out of [Tomy’s] conduct towards [Betty] and the children”: Barrett v. Huver, 2018 ONSC 2322 (“Barrett”), at para. 18.

Method of responding to the alleged alienation

[23] Another significant issue with Tomy’s motion is that it does not provide the Court with adequate details as to the proposed reunification therapy, even if I had found parental alienation.

[24] In Barrett, at paras. 40-43 and 47-48, the Court found that there is a risk of some harm to the child who is forced to partake in reunification therapy. The Court dismissed the motion where the therapy plan would require the consent of the respondent and the child. Without knowing exactly what type of therapy is being proposed, the Court is unable to determine whether the proposed treatment requires consent. Furthermore, I must take into account Maria’s views and she told the assessor repeatedly that she did not wish to attend counselling.

[25] It is telling that Tomy rejects the VOC report altogether and asserts without any evidence or basis that Maria has been so alienated that the views she has expressed are not really hers. After reading what she has said, it does not appear that Tomy has done any reflection on his part in this unfortunate situation. He blames everyone else, including Maria.

[26] In my view, Tomy has not established that his relationship issues with Maria have been caused by parental alienation.

[27] It is not impossible for his relationship with Maria to be repaired but it cannot be based on a theory that simply is not proven. If Tomy wishes to work on his relationship with his children then he needs work on himself and his own parenting skills through therapy or parenting coaching.

Parenting Time

[28] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: Divorce Act, s. 16(6). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737 (“Pereira”), at para. 26.

[29] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira, at para. 13; see also Divorce Act, s. 16(2).

[30] Other relevant considerations contained in the Divorce Act include:

i) the child’s needs given the child’s age and stage of development, such as the child’s need for stability: s. 16(3)(a);

ii) 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: s. 16(3)(b);

iii) the child’s relationship with the other spouse: s. 16(3)(c);

iv) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained: s. 16(3)(e);

v) 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 and also cooperate and communicate with the other parent: s. 16(3)(h);

vi) any family violence: s. 16(3)(j);

vii) any civil or criminal proceeding, order, condition or measure relevant to the safety, security and well-being of the child: s. 16(3)(k);

viii) 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: s. 16.1(5);

ix) the court may require that parenting time or the transfer of the child from one person to another be supervised: s. 16.1(8).

[31] In this case, Maria is 15 years old, she is mature and well-adjusted, and we know from the VOC report that she does not wish to live with Tomy. She does not have a strong relationship with Tomy and feels he has not invested in their relationship. Given these facts, it would not be in her best interests to require her to live with Tomy 50 percent of the time.

[32] Nevertheless, reading Maria’s comments in the VOC report, I think it is important that both Tomy and Maria work on their relationship. It is particularly important for Maria, as being estranged from a parent can have damaging long-term psychological impacts. Maria feels that Tomy has been an absent father and has never taken interest in her. However, he has worked in the restaurant business to provide economic support for the family and this business has required his focus. He continued in the matrimonial home for nine years after the separation, which must have been at least in part to maintain his relationship with his children. While he should have been more present and involved, he may have merely been fulfilling the role he thought he was supposed to have, and perhaps he does not have necessary parenting skills.

[33] However, working on this relationship cannot be forced on Maria, only encouraged. Any attempt to force this would be damaging to her and not in her best interest.

[34] As such, I am ordering that Maria have parenting time with Tomy Tuesdays from 6 p.m. to 8 p.m., but subject to Maria’s wishes. That is, if she does not want to attend, then she does not have to. Tomy may also seek to arrange any other parenting time that is acceptable to Maria.

[35] Therefore, I order as follows:

a) The Applicant’s motion that Maria attend for reunification therapy is dismissed;

b) Pursuant to s. 16(1) of the Divorce Act, the Applicant may have parenting time with Maria on Tuesdays from 6 p.m. to 8 p.m., subject to Maria’s wishes and agreement. For clarity, if on any of these occasions Maria does not wish to attend for any reason she does not have to.

c) The parties may make submissions on costs no longer than three pages within seven days.

Re-Released: July 9, 2021