NEWMARKET COURT FILE NO.: FC-12-42004-00
DATE: 20210929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.N. Applicant
– and –
A.N. Respondent
A. Jiwa, Counsel for the Applicant
G. Kay, Counsel for the Respondent
Sheila Bruce, Office of the Children’s Lawyer
HEARD: May 30, 31, June 1,19, November 19, 20, 2018 and December 22, 2020
REASONS FOR DECISION (PARENTING)
JARVIS J.:
[1] A teleconference was held on September 1, 2020 to deal with matters arising from bifurcated trial proceedings involving parenting and non-parenting (i.e. financial) issues. The trial of the parenting issues started on May 30, 2018 and concluded on November 20, 2018 in the sense that the evidence was completed and closing submissions heard.
[2] No judgment was released on the parenting issue because during their closing submissions, the parties agreed to engage in reunification therapy for the two younger of the parties’ three children. A detailed Order was made on January 4, 2019 (“the therapy Order”).[^1] Earlier, on December 7, 2018, this Court had ruled on a disclosure motion by the respondent (“the father”) dealing with the financial issues.[^2] A trial on those issues was directed to proceed during the May 2019 sittings of this Court but has been delayed due to the Covid-19 pandemic and the need for expert evidence.
[3] The Court monitored the parties’ compliance with the therapy Order throughout 2019 and into early 2020. In a lengthy Ruling made on June 25, 2020[^3], this Court reviewed the parties’ efforts to engage a therapist, the parties’ conduct and a report of the therapist’s efforts to engage the parties, particularly the father. The therapy never, in fact, proceeded despite the mother eventually offering to fund it. As noted in a ruling on a motion brought by the mother, I concluded that the father was responsible for the process never starting.
[11] The evidence is clear that the mother has complied with the Order: the father has not. He failed to provide to the therapist his share of her retainer. He failed to sign the therapist’s agreement even after it was revised (and the mother agreed to fully fund the therapy). He failed to sign the releases required by the therapist. He failed to respond in a timely way to the many efforts of the therapist’s offices to contact him. He was argumentative, combative and uncooperative with the therapist and representatives of her office. No therapy has started. My Orders of January 4, 2019 and January 9, 2020 could not have been any clearer. Neither was a suggestion.[^4]
[4] A final opportunity was afforded to the father to comply with the Court’s Order and to bring the parenting issues to a conclusion. The father was directed to file affidavit evidence to, among other things, explain why he thought reunification therapy would be in the children’s best interests. At the time of the ruling, the oldest child was 19 years old and had not had any meaningful contact with his father since February 2013; the youngest child, then 14, had not seen his father since June 2016; and, the middle child, then 16, had not seen his father since October 2018, shortly before the evidence component of the trial concluded.
[5] The Office of the Children’s Lawyer (“OCL”) which had been involved with the family since at least late 2012/early 2013, was directed on September 4, 2020 to update its clinical investigation.[^5] The mother also filed affidavit evidence. The parties were advised that depending on the clinician’s report, and upon further review of the evidence, the Court would determine whether further evidence and/or submissions were needed from the parties and whether reunification therapy would be in the best interests of the children.
[6] The OCL reported to the Court and the parties on November 27, 2020. On December 22, 2020 this Court heard submissions from the parties and the OCL. The Court’s decision whether to grant final judgment or order therapy was reserved. On December 23, 2020 the Court made a temporary Order declaring that the children had been residing with their mother under her primary care and control since August 2012. This Order was purposed to facilitate the mother obtaining child tax benefits which she would otherwise have been entitled to receive because no earlier parenting (i.e. then “custody”) Order had been made in these proceedings[^6].
[7] On March 18, 2021 the Court released a preliminary judgment that the mother have sole parenting time and decision-making authority with respect to the parties’ two youngest children with more comprehensive reasons to follow. The following are the reasons.
[8] First, though, the relevant background.
Background
[9] The following evidence and procedural history are relevant:
(a) The parties were married on June 12, 1999;
(b) There are three children of the marriage, SN born […], 1999; KN born […], 2004; and RN born […], 2007 (“the children”);
(c) The mother claims that the parties separated on May 21, 2012. The father claims that they separated on August 2, 2012 when he left the matrimonial home. The children continued to reside with their mother;
(d) The actual date when the parties separated is not as materially relevant to the parenting issue as is the fact that soon after the father says that the parties separated he was charged with five domestic violence counts under the Criminal Code all involving the mother, one of which was sexual assault. These offences were alleged to have been committed on July 12 and 13, 2012, a date mid-way between the parties’ separation dates;
(e) The mother was self-employed as a lawyer when the parties separated operating her own, named, law firm. It was what may be described as a general practice offering civil, criminal and family services with a side-focus on providing immigration services. The father worked for, and with, the mother performing administrative functions;
(f) The York Region Children’s Aid Society (“the Society”) became involved with the family after it was contacted by the local police regarding the children’s exposure to conflict. On October 9, 2012 the Society closed its file because it understood that the parties were constrained from communicating with each other due to the father’s bail conditions. The parties were encouraged to participate in counselling or other services to minimize future risk to the children. A service recommendation was provided;
(g) The mother started these proceedings on November 14, 2012. Pleadings were exchanged;
(h) On January 4, 2013 McGee J. made two Orders. One Order dealt with the father’s bail conditions and permitted the father to attend Family Court for this case when the mother was present, to attend counselling and mediation services with the mother, deal with the OCL (although no formal Order appointing the OCL was made at that time) and to attend the children’s medical and school appointments. The second Order dealt with the father’s parenting time with the children and the parties’ disclosure obligations;
(i) On February 13, 2013 Rogers J. heard motions by the parties for a broad range of relief. Relevant to the parenting issue are those terms requiring the parties to communicate on child-related issues through Our Family Wizard (“OFW”). Further directions about the parties’ parenting responsibilities were given;
(j) On March 26, 2013 McGee J. held a settlement conference but adjourned it because the parties were unprepared to deal with the substantive support and equalization issues. Directions were given. An Order appointing the OCL was made and later accepted. Ms. Bruce was appointed by the OCL as counsel for the children and Ms. Karen Guthrie-Douse, a clinician employed by the OCL, was appointed to assist Ms. Bruce. Both have continued their involvement with the family since their appointments;
(k) A further settlement conference was held by McGee J. on August 5, 2013. There remained outstanding disclosure issues. The record reflected that the OCL was unable to provide the children’s views and preferences because their involvement had only recently begun. A recent referral to the Society was noted;
(l) On February 26, 2014 a disciplinary panel of the Law Society of Upper Canada (as it was then known) determined that the mother was ungovernable and suspended her licence to practice law;
(m) On March 5, 2014 Mullins J. granted the mother’s request to sever the divorce and corollary relief issues and on March 18, 2014 Healey J. granted the mother’s motion for a Divorce Order;
(n) On April 3, 2014 Brunet J. of the Ontario Court of Justice dismissed all charges against the father. In reaching its decision the Court contrasted the parties’ credibility, ultimately concluding that the mother’s “testimony was not reliable or credible enough to prove a case beyond a reasonable doubt”[^7];
(o) The mother remarried on April 26, 2014 (Mr. B. Smith);
(p) The OCL sought disclosure from Mr. Smith involving child protection and police records from another region. When Mr. Smith declined to provide his consent, the OCL brought a motion which Bennett J. granted on March 11, 2015. Mr. Smith’s motion for leave to appeal was dismissed by Kaufman J. on July 22, 2015;
(q) An OCL disclosure meeting was held on October 16, 2015 at which Ms. Bruce, Ms. Guthrie-Douse and counsel for the parties attended. The position of the OCL for KN and RN was that they should have more time with their father;
(r) On March 5, 2018 the case was scheduled for trial during the May sittings of the court by McGee J. As there remained outstanding financial disclosure from the mother McGee J. directed that if the relevant disclosure was not provided by April 15, 2018 then the father could move for an Order bifurcating the trial so that the parenting issues could proceed;
(s) On April 26, 2018 the father brought an urgent motion to bifurcate the parenting and financial issues so that the parenting issues could be heard during the upcoming trial sittings and the financial issues at the following trial sittings. On May 16, 2018 I made the Order requested. The parties then disputed whether the mother had produced the disclosure ordered. In a subsequent teleconference with counsel on May 18, 2018 (this was during the regular May trial sittings of the court), the Order of May 16, 2018 was confirmed and the parties directed to proceed with the trial of the parenting issues. Directions were given with respect to the mother’s outstanding disclosure-that issue would be addressed at the conclusion of the parenting trial, which the parties estimated would take three days;
(t) On May 23, 2018 the parties were cautioned that the parenting trial needed to be concluded by June 1, 2018, the last day of the trial sittings;
(u) The parenting trial started on May 30, 2018 and was not completed in the time estimated by counsel, adjourning after the third day to June 19, 2018. When the trial was not concluded that day it was continued to August 2, 2018 but that date was subsequently adjourned to September 28, 2018 because counsel for the mother, Mr. Jiwa, was ill. He was still ill in late September so the trial was rescheduled to continue on November 19, 2018 during the court’s semi-annual trial sittings;
(v) The parties’ evidence was concluded on November 19, 2018 at which time closing submissions were heard: these concluded on November 20, 2018. During the evidence and, particularly during submissions, the parties agreed to pursue family reunification therapy and counselling. Judgment was otherwise reserved.
[10] A therapy Order was made on January 4, 2019. Paragraphs 6 to 10 of the Court’s endorsement are relevant.
[6] Both parents testified that they support an outcome that involves family reunification therapy and counselling, the object of which would be to re-establish a healthy, meaningful relationship between the children and their father. But they dispute what that should involve and who should pay for it. The mother has proposed that no access should be awarded to the father until he undertakes therapy, counselling or parenting courses, including anger management, and that once a therapist feels that the children should become involved in the process then she would make her best efforts to co-ordinate and cooperate in having the children attend for therapy or counselling. The father has proposed reunification therapy, without pre-conditions, and is aligned with the position of the OCL.
[7] Ms. Bruce emphasized that the children needed to have a relationship with both parents, submitting that “there needs to be therapeutic intervention to assist [the children]”. She also submitted that “[b]oth parents could benefit from the assistance of professionals in guiding them through some of the actions which have affected the children negatively…”.
[8] Mr. Joseph and Ms. Bruce suggested the names of three highly regarded professionals whose expertise involves reunification therapy. Mr. Jiwa did not challenge any of the suggested names. He confirmed to the Court that his client didn’t disagree with the principle of reunification therapy.
[9] No party has provided the Court with terms of the proposed therapy.
[10] The events leading up to this trial have spanned six years, numerous court Orders, six days of trial and spirited efforts by each party to impugn the credibility of the other party and the mother’s new partner (now husband). It is critical to the best interests of KN and RN that steps be taken forthwith to start the reunification process pending delivery of more fulsome written reasons. In making the following Order, I am mindful of the decision of this Court in Leelaratna v. Leelaratna[^8] and the factors and authorities referenced in that decision relevant to making a therapeutic Order and whether any such Order would be appropriate in the circumstances of this case. The parents and the OCL agree, as do I, that such an Order is needed and that it is appropriate for this family.
[11] Detailed directions were given with respect to family reunification therapy. Until that process began, the children’s residency with their mother was continued: no Order was made with respect to parenting time.
[12] As noted in [3] above, the family therapy never started due to the father’s conduct. Context is important. The Ruling released on June 25, 2020 extensively detailed the interactions of the parties and involvement of the Court in the (ultimately failed) therapy process. The conclusion about the father’s conduct in paragraph [11] of the Ruling was preceded by the proposed therapist’s summary of her involvement.
This [i.e., the therapist’s detailed summary of the involvement of her offices and her with the parties[^9]] summarizes our encounters with [the father] and attempts to provide him with court ordered services.
It is informed that in August 2019 we were first contacted by Ms. Bruce, OCL, requesting assistance with this reunification. Within weeks of Ms. Bruce’s initial referral, [the mother] called, scheduled an appointment, came in promptly, signed all requested documents, attended her initial orientation and information meeting with Maria Christopoulos, made payment for the time spent, and has remained compliant and cooperative with all our requests since then.
In contrast, six months later and dozens of attempts to have [the father] cooperate with our procedures have been unsuccessful. Based on his emails and other communications with us, [the father] seems to find our work entirely unacceptable and substandard. He finds our staff ‘intimidating and unprofessional’.
Regarding intimidating behaviour, it is informed that Ms. Parker reported to us that when she was making changes to the retainer agreement (January 27th), [the father] ‘rushed behind her desk’, after we left, to observe the changes she was making on the computer. Ms. Parker was uncomfortable asking him to please step back and leave her private area behind the desk, designed to provide a barrier. It was most inappropriate of [the father] to enter into her personal space and stand over her shoulder, instructing her while she worked. Ms. Parker reported that she found it very distressing interacting with [the father], who would drop in, unexpectedly, often when she was working alone in the office. [The father] has repeatedly ignored our requests to attend the clinic only by appointment; we do not offer ‘drop-in’ services.
Despite our best efforts, we have been unable to establish the necessary rapport, trust and relationship for meaningful therapeutic work in this matter. We have no information about the children, or what their voice may be in this matter. We do not, one year after [the father] first ‘dropped in’ to our office, have a signed agreement with [the father]. We would like to inform that we have been unable to provide services to [the father], and close our file.
[13] Paragraphs [13] and [14] of the Ruling noted the following.
[13] In light of the trial evidence and what has transpired since then the mother’s request for a final Order in the terms proposed has merit. This case began in 2012 and has been plagued by lengthy delays. It is time to bring the parenting issues to a conclusion. Regrettably, nothing in the father’s recent affidavit addresses how or in what way the Order now sought by the mother would not be in the children’s best interests after eight years of litigation and the father’s lack of contact with RN for over four years and for over one and a half years in the case of KN.
[14] The father shall be given one, last opportunity to comply with the Court’s Orders and to move the parenting issues to a conclusion.
[14] The OCL updated its investigation and reported to the Court in an affidavit from Ms. Guthrie-Douse sworn November 27, 2020. She reported that, together with Ms. Bruce, she had Zoom-conferenced with both boys twice and that, in each case, they maintained that they did not want to see or have any contact with their father. Their views were "clearly expressed” and “consistent” that they did not wish to participate in reunification therapy and “did not want any form of contact with their father”.[^10]
Trial evidence
[15] Pursuant to the Trial Scheduling Order, the OCL evidence proceeded first.
Evolution of the OCL’s involvement
[16] There were three phases to the OCL’s involvement. The first was the period after its 2013 appointment until a disclosure meeting held on October 15, 2015; the second was from March 6, 2018 to November 18, 2018; and the third was from September 4, 2020 until December 22, 2020.
[17] The clinical investigator, Ms. Guthrie-Douse, prepared three affidavits for the Court and was the first trial witness. Her testimony at trial tracked the contents of her first affidavit sworn April 25, 2018[^11]: her second affidavit sworn November 18, 2018 was admitted without objection from the parties.[^12] She described the overall situation as “very complex”. Several child protection investigations delayed work as did the refusal of Mr. Smith, the mother’s then partner, now spouse, to consent to the disclosure of child protection records from the Durham Children’s Aid Society (“DCAS”) and criminal records. After Kaufman J. dismissed Mr. Smith’s request for leave to appeal on July 22, 2015, the records were obtained and a disclosure meeting subsequently held three months later.
[18] The salient features of the investigator’s evidence are these:
(a) The OCL’s appointment involved all three of the children SN, KN and RN. Each child was first interviewed on July 16, 2013. OCL involvement ultimately did not include SN because he turned 18 years old in […] 2017. Other interview dates during the first phase of the agency’s involvement were February 18, 2014; March 4, 2014; May 20, 2015; and June 16, 2015;
(b) When SN was interviewed, he indicated that he wished to live with his mother and did not want any contact with his father. The investigator reported that SN had told her that his father often beat him and on one occasion wanted to charge him with a criminal offence, but this report was not verified;
(c) KN was seeing his father alternate weekends and on Tuesdays. He reported that his father was sometimes physical with him (unspecified hurting, grabbing him and throwing him on a bed). This had been disclosed by SN to Ms. Bruce and Ms. Guthrie-Douse on July 16, 2013 and was reported to the DCAS which investigated and verified the allegations. Even so, KN wanted more time with his father, a week about living arrangement. He shared this wish with his mother and stepfather. It was also important to him that he and RN spend their time together with their father;
(d) RN, who was 6 years old when he was first interviewed was not as expressive as either of his older brothers. No meaningful views and preferences were obtained;
(e) No concerns were expressed by the investigator about either parent’s living arrangements;
(f) Excepting SN, whose private school declined to speak to the investigator, KN was reported to be struggling at school (he and RN attended a different school than SN) and had some social interaction difficulties. RN was academically average and seemed fine, with no behavioural or social concerns;
(g) The administrator of the school where KN and RN attended told the investigator that the school had received a letter from the mother’s lawyer not to provide written information to the father. He attended school meetings but expressed no concerns apart from not being provided with the children’s report cards;
(h) The Society records disclosed four protection activations for the family and one non-protection activation between March 7, 2011 and July 16, 2013. The four protection activations involved an unverified report of inappropriate physical discipline of KN by his mother (March 7, 2011); a police report to the Society of domestic violence (September 5, 2012); concerns reported by the mother about changes in KN’s behaviour after spending time with his father (January 13, 2013) and an unverified report by both KN and RN of inappropriate physical contact (hitting, punching, use of a belt) by both parents. The Society closed its files with respect to these activations because the parents refused to cooperate;
(i) The fourth activation (January 26, 2013) involved a police report of a verbal altercation between the father and two males, one of whom was Mr. Smith, at a football game when SN and his siblings were in their father’s care;
(j) The non-protection activation related to a request from DCAS involving a child protection investigation it started after KN’s July 16, 2013 disclosure to Ms. Bruce and Ms. Guthrie-Douse (see (c) above);
(k) On January 10, 2014 the father reported, but the children denied, that they had been physically disciplined (struck) by Mr. Smith and given alcohol at a New Year’s party. The interviewing worker was concerned that the children may have been coached by both parents. It was alleged that the father was trying to tape statements of the children incriminating Mr. Smith;
(l) The DCAS records relating to Mr. Smith that he unsuccessfully objected to disclosing revealed a history of agency involvement with him and his family before he met and married the mother in this case. The period ranged from June 2001 to June 2010. The concerns involved physical abuse of a daughter, stepdaughter and domestic violence leading to at least three criminal convictions and periods of incarceration. The offences were assault causing bodily harm, assault with a weapon (a belt on two occasions) and breach of recognizance and a non-contact Order involving his former spouse and her children. Two other convictions (July 29, 1998 and February 23, 2016) involved, respectively, assault with a weapon (piece of wood) and assault causing bodily harm, neither of which was family-related.
[19] The disclosure meeting held on October 15, 2015 was, atypically, attended only by counsel because, apparently, the sensitive nature of the information relating to Mr. Smith, although that was never clearly explained to the Court. The children’s views, their preferences and the recommendations made by the OCL were summarized in a letter[^13] from Ms. Bruce to counsel which Ms. Guthrie-Douse agreed in her testimony accurately reflected what happened at the meeting:
(a) KN had consistently requested more time with his father and in June 2015 clearly stated that he wanted to spend alternating weeks with his father but also wanted RN to have the same schedule. The OCL had no concern that KN was being pressured to make this statement, although there were concerns that both parents had been speaking to the children about legal issues;
(b)RN did not specifically comment on a parenting schedule. From his statements and the observations of him in his father’s care, he appeared happy being with his father.
[20] A reason for Ms. Bruce confirming to counsel the OCL’s position is that Mr. Jiwa had disputed what had been discussed at the disclosure meeting about the children’s views and preferences and suggested a different narrative which Ms. Guthrie-Douse testified did not reflect what, for example, RN told the OCL. The mother was reporting that RN was emphatically uninterested in an alternate week residency arrangement with his father and was always making excuses to avoid visiting him.
[21] Thus ended the first phase of the OCL’s involvement. Ms. Guthrie-Douse could not recall the specific date when she closed her file, but it was reopened and its information updated as this case was being readied for trial. In the interim the father had contacted Ms. Bruce on several occasions to report that he was being refused parenting time with the children or that only KN was attending. RN refused to see his father after the last day of school in June 2016.
[22] On December 27, 2016 the mother wrote directly to Ms. Bruce after a complaint by the father about the children’s time with him. The mother accused Ms. Bruce of “not only representing the children but also [the father]” and that as it appeared that Ms. Bruce “… and [the father] and his counsel have a very close relationship…” perhaps she could persuade the father to use OFW.[^14] The mother said that given the difficulty of communication between the parents and the father’s refusal to cooperate on any parenting time changes, she found it “very peculiar that you would recommend shared residence”. The father refused to use OFW because when he responded, he said that it didn’t matter what he said anyway.
[23] The second phase began on March 6, 2018, the day after the Trial Scheduling conference held by McGee J. The parents were separately interviewed; the children (only KN and RN) were interviewed twice in April. Ms. Guthrie-Douse testified that:
(a) KN disclaimed that he had never meant that he wanted to spend alternate weeks living with his father. He said that his mother had asked him whether he had really wanted more time with his father. He told her that he didn’t;
(b)KN said that his father told him to cry when he was being interviewed because that would make a better impression, and that his father continuously asked about conditions in his mother’s home;
(c) KN felt safe at both of his parents’ homes but wanted to live with his mother because he felt safer there and wanted to be with his brothers. He was content with the existing parenting schedule. He stated that he wanted his father to listen to him and to stop asking questions about his mother and Mr. Smith. KN was aware that his father wasn’t paying child support;
(d)There were no concerns about the father’s care of KN;
(e) RN told the OCL that his father always criticized his mother and that when the boys were younger their father beat them. He last saw his father on June 30, 2016, his final day of school. The father wanted to pick him up early from school, but RN didn’t wish that, called his mother and was told by her that it was his choice whether to be with his father. RN told the investigator that he didn’t want to see his father and that nothing could be done to change his mind. RN said that when he went to his father’s residence the paternal grandmother called him “dumb” and “stupid”. This had never been disclosed in the first phase of interviews. Ms. Guthrie-Douse testified that she was unable to explain why there had been such a change in RN’s view about spending time with his father. She thought that a parent discussing child support issues with a child and leaving to a child the decision whether to see the other parent was not in a child’s best interests and was inappropriate;
(f) Two interviews of KN and RN were held in the month before the parenting trial began. SN appeared, unscheduled, when the second interviews were held at Ms. Bruce’s offices even though Ms. Bruce was no longer representing him. SN volunteered his concerns about his brothers and their father, reporting that his father was a “bad person” who didn’t contribute financially to the family. SN told Ms. Guthrie-Douse and Ms. Bruce that he had last seen his father several years after a verbal dispute between them had escalated to the point where police had to be called and intervened. He said that his father wanted the police to charge him. No more details that these were provided;
(g)The investigator testified that the views of KN and RN were “very clear and very entrenched”: KN was agreeable to the then current weekly schedule continuing, possibly increasing it by one hour whereas RN did not wish to see his father at all;
(h)Ms. Guthrie-Douse concluded that the boys knew a lot about their parents’ litigation and that this information likely influenced their views and preferences. As did the passage of time and the fact that RN had not had contact with his father for almost two years.
[24] On November 13, 2018, less than a week before the parenting trial restarted, Ms. Bruce received an email from KN. The email indicated that there had been on-going issues between KN and his father involving KN’s cell phone. Apparently, his father didn’t want to let him bring it on their time together and had taken it from him, denied doing that, then returned it the next day to KN’s school. KN said that he didn’t want to see his father anymore. Ms. Bruce and Ms. Guthrie-Douse arranged to meet with KN on November 18th, the day before resumption of the trial.
[25] During KN’s interview he told the OCL that he knew that the trial was starting the next day because his mother had told him and that she had sent the email because he didn’t know how to do that. KN expanded on what he had earlier told the OCL such as his father’s practice of trying to “brainwash” him anywhere from three to seven days before a court appearance by having him sit in his father’s office for several hours during which his father would say bad things about his mother, no examples of which KN could recall. KN complained that his father hurt him but forgot what that involved because it was so long ago and that his father lied to him and his family. In her affidavit sworn November 18, 2018, Ms. Guthrie-Douse observed that throughout “the interview, [KN] had difficulty recalling details and the timing of events”.[^15] KN had no explanation why several of his reasons for not wanting to see his father had not been mentioned before.
[26] The third phase of the OCL’s involvement involved separate ZOOM conferences with KN and RN on each of November 20 and 24, 2020 to ascertain their views and preferences with respect to reconciliation counselling and their relationship with their father. As directed by the Court, the purpose of reconciliation therapy was explained to both boys. Neither was interested in attending therapy. Neither wanted anything to do with their father. Ms. Guthrie-Douse concluded that the boys’ views were “strong, clearly expressed” and consistent.
The mother’s evidence
[27] The mother and her spouse, Mr. Smith, testified.
[28] The mother described the circumstances of her meeting and later marrying the father. She had been called to the Quebec Bar in 2000, shortly after the parties married and SN was born ([…] 1999). She was also licenced to practice law in Ontario but her licence was suspended in 2014 because, among other things, she was found to be ungovernable. She said that her relationship with the father was emotionally abusive. The parties separated then reconciled three times before their final separation.
[29] The mother described incidents of violence in the parties’ matrimonial home before they separated which involved her and the children, particularly RN. She simply “couldn’t take it any longer”. The father accused her of infidelity, assaulted her then left the home. She changed the locks on August 2, 2012. On or shortly after October 9, 2012 the mother received a letter from the Society advising that it was closing a file it had opened as a result of a police report about the children being exposed to family conflict. There were bail conditions then in place limiting contact between the parties.
[30] Before the parties separated, KN had been diagnosed with severe learning disabilities. He was seven years old. These also included memory and fine motor skill problems. A psycho-educational assessment was done, forming part of his school record. According to mother, the father never accepted that KN had serious problems.
[31] The children did not see their father until after the father retained a lawyer in early October 2012. The father proposed frequent and regular access, including overnight access, to be arranged and facilitated through the paternal grandmother and the father’s brother because of the father’s recent bail conditions. The mother, who was representing herself, did not agree to overnight access and so a flurry of email exchanges between her and the father’s lawyer followed negotiating parenting time and disputing events of concern when some parenting time did occur. The mother issued her Application on November 14, 2012 starting these proceedings. She alleged on December 4, 2012 that the father would do whatever it took to “obtain information to help build his case in this litigation through deceitful means for his financial benefit”.[^16] The father accused her, and she denied, that she was trying to alienate the children from him.
[32] On January 4, 2013 McGee J. ordered that the children have alternating weekend overnight access with their father as well as Tuesday evenings after school until 8 pm.
[33] On January 17, 2013 the father attended a pre-arranged parent-teacher meeting at the school where KN and RN attended. He did not ask to meet, and did not meet, with either child. The mother wrote to the school principal the next day to inform him that the father was not permitted by court Order to be present at the school for any reason other than picking up the children on Tuesdays only. That is not what the Order said: it contained no prohibition about the father attending meetings with school representatives and it provided that the children would be picked up by their father from school for their times with him on Tuesdays and Fridays.
[34] On January 26, 2013, when the boys were with their father, the mother, Mr. Smith and the mother’s stepbrother attended a location where SN was practicing for football. The mother testified that SN had asked that he be picked up from the practice and that she asked Mr. Smith and her stepbrother to enter the facility to retrieve SN. She did not enter. The police attended after being called by the father. They interviewed the parents. The father wanted charges pressed but the police declined.
[35] The parties began to communicate through OFW after the Order of Rogers J. on February 13, 2013. A review of those exchanges discloses an initial cordiality and sense of cooperative parenting that soon deteriorated to allegations of unilateral decision-making (by the mother), disagreements about the children’s activities (the father did not want the boys to participate in football or other sports activities: the mother registered them to play football anyway even though that impacted their time with him), complaints about timely communications (or just non-communication) often involving exchange times (or non-appearances) and, finally, the mother complaining that the father was failing to communicate through OFW as ordered which, ultimately, is what happened.
[36] On February 9, 2013 an incident occurred in which SN allegedly wanted to return early from time with his father. Mr. Smith and a friend attended outside the father’s apartment where they noticed that a police cruiser was parked. SN appeared in the company of two officers who had attended because the father had called them and indicated that Mr. Smith was coming to harm him. SN and his father had had some kind of disagreement or altercation-this is what prompted SN’s call to his mother and the father’s call to the police. The younger children were present. No charges were laid. Afterwards, the mother advised the father’s lawyer that SN was being abused by his father, that SN was distraught, frustrated and never wanted to visit him again.
[37] Later in February 2013 the mother informed the father’s lawyer that SN’s relationship with his father was problematic, becoming increasingly difficult, and that the father should consider attending a parenting course. The younger boys were being affected too.
[38] SN had no further contact with his father after February 9, 2013. KN and RN continued to spend time, and had contact, with their father in accordance with the Orders of McGee J. and Rogers J.
[39] On June 24, 2013 SN was scheduled to graduate from his school. Mindful of his bail conditions, the father asked the mother through OFW whether she objected to his attendance. The mother never viewed the OFW message. The father’s lawyer then copied the OFW message to the mother. The mother emphatically declined (“[u]nder no circumstance should [the father] attend [SN]’s graduation”). She clamed that she couldn’t “bear” to be in the father’s presence even though the ceremony was taking place in a Hall and other people would have been present. The father did not attend.
[40] The OCL interviewed the children on July 16, 2013.
[41] The mother’s evidence about events involving the children and their father between their first OCL interview and its second-phase involvement before trial in 2018 did not materially differ, when canvassed, from Ms. Guthrie-Douse’s narrative. Notable events included her disbarment in late February 2014, the acquittal of the father of the criminal charges on April 3, 2014, her marriage a few weeks later to Mr. Smith, the delay caused by Mr. Smith’s unsuccessful objection to production of his child protection and criminal records, all culminating in the October 2015 disclosure meeting (counsel only) and the OCL’s recommendations involving expanding access between KN (in particular) and RN with their father. The mother didn’t accept this recommendation because she said that KN needed a lot of academic assistance (he was a special needs student), which the father disputed, and in her discussions with KN he told her that he didn’t really want to spend more time with his father. Until the disclosure meeting, she said that the father had never wanted more time with the children.
[42] The mother supported Mr. Smith’s objections to producing the records sought by the OCL, even though she knew their contents, because she thought the OCL was “prying”, the contents weren’t relevant and, besides, Mr. Smith was good to the children.
[43] The mother acknowledged that she enrolled the children in counselling without the father’s knowledge even though there was still an active OFW account with the father (which the mother said the father had discontinued using by then). She also acknowledged that at some point after the disclosure meeting and (likely) before the end of June 2016 she left it to RN to decide whether to spend time with his father. RN has not seen or had contact with his father since his last day of school on June 30, 2016. She never notified the father about any of the children’s dental appointments or even the dentist’s identity. She decided to change the children’s school in September 2017 without the father’s agreement and didn’t tell him about the children’s academic assessments, leaving that to the school. Trying to communicate with the father through OFW was a waste of time.
[44] While agreeable to working with a reunification therapist, the mother was not prepared to contribute to its cost.
Mr. Smith’s evidence
[45] Mr. Smith described himself as a successful entrepreneur who had overcome a challenging childhood, no high school, no formal education and a relationship that included family and non-family violence over a period of several years for which he had been convicted and for which a few months of counselling had helped. Despite missing what he described, without elaborating, “a lot” of his three children’s lives from his first marriage (all now adults), he had a “perfect” relationship with them. He was active in the community as a football coach for many years and had once been honoured as a Coach of the Year.
[46] The mother and Mr. Smith had known each other for about eight years before they began dating in November 2012. In January 2013 they began cohabiting.
[47] Mr. Smith testified that the January 26, 2013 football practice incident arose after SN had called his mother. He was crying and wanted to be picked up. The mother’s stepbrother was visiting. He had a criminal record. Together with the mother the three drove to the facility where the father and children were inside, SN at his practice. Mr. Smith and the stepbrother went inside and approached the father. There was no intention to intimidate the father who pulled out his cellphone and filmed them. The police were called. Mr. Smith and the stepbrother left the facility and waited outside for the police to arrive, enter the facility and bring out SN, leaving the father and the younger two children inside. Mr. Smith acknowledged loudly calling the father a rapist (the father would not be acquitted of the criminal charges until the next year) but disputed that he did that inside the facility: he did that outside. SN was in the car by that time. The Police Incident Report indicated that these words, and others, were said inside the facility.
[48] The children’s next weekend living with their father was two weeks later. Mr. Smith went to pick up SN. When he arrived outside the father’s apartment building there were two police cruisers. He “barely” got out of his car. SN came out of the building and left with him. According to Mr. Smith the precipitating event was a phone call by SN to his mother that his father wanted him charged. Mr. Smith acknowledged that there was no mention in the Police Incident Report made that the father wanted to have SN charged with anything.
[49] Mr. Smith was vigorously cross-examined about his criminal record. The Society had wanted his consent to disclosure of those records and the DCAS protection records relating to his previous family. He said that the mother had told him that he didn’t have to disclose, or consent to the disclosure of, any of these records. In resisting the OCL’s production requests, Mr. Smith accused the OCL of failing to meet its statutory obligations and instead “taking advantage” that he was unrepresented “to bully and trample over my rights, which is quite shameful for a governmental organization”.[^17] Although present in court when costs Orders had been made by Bennett J. and Kaufman J. against him, neither of those Orders had been paid. He had simply forgotten about them.
[50] Mr. Smith testified that he supported the children’s relationship with their father although he acknowledged (as already noted) calling the father a rapist. He thought the father was delusional and pathetic. SN and RN treated him as their father.
The father’s evidence
[51] The father testified as did his girlfriend and his brother.
[52] The father and the mother began dating in 1990 and married in Montreal in 1999 shortly before SN was born. After the mother was called to the Ontario Bar, she opened her own law firm in 2003. KN was born the next year. The father worked several jobs before beginning to work with the mother where he assumed administrative responsibilities which included hiring and personnel management.
[53] The father described himself as very involved with SN after he was born, doing “everything a dad should do”. This continued after KN was born. The boys were very active: SN swam, played soccer and, later, football; KN played basketball, soccer and piano. After RN’s birth and before the parties separated, the mother never complained about his caregiving, he had no difficulties with the boys and never hit them. The March 2011 CAS protection file activation (see para. 18(h) above) was precipitated by a teacher overhearing KN telling other students that his mother had hit him with a belt in the eye; he had a red mark. The mother delayed meeting with a Society worker and, when a family interview was later held, KN denied being hit by his mother or saying what the teacher reported. The file was closed. The father said that the mother has a bad temper and could be aggressive and threatening. For example, after the parties separated, the mother threatened the father not to tell third parties about Mr. Smith’s “history”.
[54] The parties separated after the father discovered that the mother was having an affair with Mr. Smith, SN’s football coach. The situation in the home was tense: the father described the mother as being very aggressive with him, loud. She wanted him to leave. She changed the locks to the matrimonial home and shut him out of the office. He had little money and no personal belongings. He went to live with his mother in her North Toronto apartment.
[55] Between August 2 and August 31, 2012, the father wanted to see the children, but the mother refused. The second Society protection activation in September 2012 (see para. 18(h) above) was the result of a telephone call by the mother to the police in which the mother reported that the father had attended at the home the previous weekend “yelling, ranting and wanting her to come out of the house to speak with him”.[^18] When the mother failed to return calls left by a Society worker, the filed was closed. On September 13, 2012 the father was charged with five counts under the Criminal Code alleging sexual assault, assault and confinement of the mother, mischief to property and unlawful interception of private communications, all taking place on July 23 or 24, 2012. His life became a “nightmare”.
[56] Between September 1, 2012 and the Order made by McGee J. on January 4, 2013 the father was only allowed to see the children three times. He retained different counsel to represent him on the criminal charges and the family issues.
[57] The father’s first weekend with the children after the McGee J. Order was January 26, 2013. He took all three of them to a football practice for SN in Pickering. All was fine until later, during the practice, the father noticed Mr. Smith and the mother’s stepbrother approaching him “like gang members”. He knew they could be violent. He was on crutches (he had an Achilles tendon problem). He called 911. Mr. Smith and the stepbrother said they were there to pick up the children: they were standing very close to the father. Mr. Smith had his cellphone out and the father could overhear him talking to the mother. He was told that SN had called but that wasn’t true because he was on the field. When the father tried to take a picture of Mr. Smith and the stepbrother with his mobile phone, Mr. Smith hit the father’s hand to knock away the phone and started yelling at him that he was a rapist (and other names)-he was very, very aggressive. Pictures of the incident were entered into evidence.
[58] The police arrived shortly after Mr. Smith and the stepbrother left the field following the father’s 911 call. SN went outside with the police. The father spoke to the police: Mr. Smith was continuing to yell. Eventually SN left with his mother (who was in the car) while KN and RN went home with their father.
[59] The children’s next weekend with their father was February 9, 2013. This was four days before the parties appeared before Rogers J. on February 13th (see paragraph 9 (i) above) where directions were given with respect to communications between parties (OFW) and dealing with parenting responsibilities. The children were with him. SN had a football practice, but the father didn’t want to go because of the incident two weeks earlier. He told SN to call his mother to pick him up which, after doing, SN became “very aggressive” with his father and told him that Mr. Smith was coming. The father was scared, as was his mother (the paternal grandmother) so he called the police. They arrived about 10-15 minutes later. SN went with the police to where his mother and Mr. Smith were located outside the apartment building. The father denied that he had called the police to have SN charged-he did that to protect himself-and he denied that he had ever told SN that he would call the police on him. The father has had no meaningful contact with SN since then: he has only seen SN when passing on the street or when picking up his brothers.
[60] Despite paragraph 5 of the Rogers J. Order obligating the mother to facilitate twice weekly telephone calls between the children and their father, this didn’t work at all. The mother did not comply with the Order. At one point the children were calling him from home, but the mother reprimanded them, so they had to call him from their school if they wanted to speak to him which, the father added, the school later stopped. He could only contact them through their school. OFW was not working either. When it started the mother told the father that their contacts would be restricted to access only. She wouldn’t answer his inquiries about the children or their activities, rarely told him about the children’s health: she made all decisions affecting the children without consulting him. One example involved SN needing hospital attention in November 2012. The father went to the hospital to get information about his son but was not allowed any information.
[61] SN was going to graduate from his school at the end of June 2013. The father wanted to attend but he did not want to breach his bail conditions. He asked the mother to attend but she refused. In a July 16, 2013 interview with the OCL, KN reported being hurt by his father on occasion (see paragraph 18(c) above). Although this was verified by the DCAS, the father said no such incident ever happened and that he had no idea how any such thing could have been verified anyway.
[62] In the months and years following, the father complained about the following incidents:
(a) Until he was acquitted in early April 2014 of the criminal charges, the father had to hire a taxi to pick-up and return the children to their mother. The father said that, afterward, when he picked up the children from her residence, he often observed Mr. Smith following him in the mother’s car, another example he said of attempts by the mother and Mr. Smith to intimidate him;
(b)The OCL made arrangements for a home visit with the children and their father for Friday, May 1, 2015. This would have been before the weekend when they would have been with their mother. Notice had been given to her. When the father went to pick-up KN and RN from school, he learned that the mother had attended earlier and taken them. The visit had to be rearranged;
(c) During the summer 2015 the mother took the children to Montreal during times they would have been in their father’s care, without his consent. She would dictate the times that the children could spend their holiday time with him;
(d)After RN last saw his father at school at the end of June 2016, the father continued his efforts to see him. He asked the school in September 2016 to help enforce the court Order involving his picking up RN from school. The school was concerned about being asked to enforce the parenting schedule. Ms. Bruce became involved, advising the parties that it was “the position of the OCL on behalf of the children that the court ordered parenting schedules must be followed and that the children must be encouraged to attend and not supported in refusing to attend scheduled times”[^19];
(e) For March Break 2017 the mother took the children on a vacation to Jamaica without the father’s consent even though that impacted the children’s scheduled time with him;
(f) In May 2017 the father contacted the RN and KN’s school to confirm their attendance (they had scheduled parenting time with him after school). They were in class. When the father attended to obtain them, he learned that Mr. Smith had arrived before classes ended and picked up the children. The children were not present for their end of school year ceremony: the father came to their graduation, but they were not present. The father informed his lawyer and the OCL that the mother had not allowed the children to attend;
(g)Between the adjournment of trial on June 19, 2018 and its resumption in November 2018, the father attempted to exercise his regularly scheduled parenting time without success on at least ten occasions at the mother’s residence and the children’s school. When he attended the mother’s residence he would park outside on the street. On one occasion (August 7, 2018) he observed the children outside, playing basketball. Mr. Smith approached him while the father remained in his car and told him to leave. The father said that Mr. Smith appeared intimidating and threatening. Photographs were taken by the father[^20];
Joanne Dorzin
[63] Joanne Dorzin testified. She was the father’s girlfriend, lived in Montreal and visited the father every two or three weeks. She described KN’s relationship as good. She was present on October 27, 2018 when KN was spending time with his father. KN could not find his cell phone. He was upset, said that his mother would call the police (on whom or about what was not explored further in the evidence). After KN returned home the father searched his premises and found the phone in the sofa where KN often sat to play video games. The father did not contact KN to tell him that he’d located it: he said that he would take it to him the following day, Monday.
Alex N.
[64] Alex N. (“AxN”) is the father’s brother. An affidavit was filed comprising much of his evidence-in-chief.[^21] He told the Court that he was married, had a four-year old son and another expected soon as his wife was pregnant. He lived walking distance from the father’s residence.
[65] Before the parties separated AxN saw them together as a couple about three times a week at each other’s homes, family functions and sporting events. He described the children as having a close and very loving relationship with their father. He was more flexible than the mother with the children. Post-separation he noticed changes in the children. The only time he encountered Mr. Smith was during the father’s criminal trial in early 2014. Mr. Smith approached him, in his face, and said words which caused AxN to alert the police. They became involved and ensured there was no trouble.
[66] The last time he saw SN was at a good friend’s wedding in August 2015 in Montreal. SN was attending with his mother and Mr. Smith. AxN and SN spoke. AxN observed that their interaction became noticeably cooler, less demonstrative, when Mr. Smith approached.
[67] AxN couldn’t recall when SN stopped seeing his father before the 2015 Montreal wedding. He also couldn’t recall the last time that he saw RN and didn’t know why RN stopped seeing his father either except that he thought it was not too long after SN stopped (it was almost two and a half years). When he last observed KN and his father together they appeared to be enjoying themselves.
Credibility
[68] Each party vigorously challenged the other’s credibility. The mother disputed that she had engaged in conduct intended to alienate the children from their father: he did not appreciate the impact of his actions on the children. The father he submitted that the mother’s words about trying to support the children’s relationship with him were inconsistent with her action, or rather inaction. Complicating the assessment of each party’s credibility is the fact that neither was entirely compliant with court Orders nor took timely steps to require the other party’s compliance with those Orders when there was non-compliance, often resulting in months, if not years of delay, postponing a more timely resolution of the parenting issues to the detriment of the children.
[69] In Baker-Warren v. Denault [^22] Forgeron J. noted that credibility assessment was not an exact science:
“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. Gagnon, 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R v. R.E.M., 2008 SCC 51, para. 49.”
[70] More recently, in Al-Sajee v Tawfic[^23], Chappel J. expanded on the extant authorities.
…The complexity of the task (i.e. assessing credibility) is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22). Despite the challenges inherent in the task, the case-law has articulated numerous factors which the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), at para 9, R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75, R. v. Jeng, 2004 BCCA 464 (B.C. C.A.), Bradshaw v. Stenner, 2010 BCSC 1398 (B.C. S.C.) at para 186, aff'd 2012 BCCA 296 (B.C. C.A.) and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538, at paras. 34-40 (S.C.), these considerations include the following:
a) Were there inconsistencies and weaknesses in the witness' evidence,
including internal inconsistencies, prior inconsistent statements,
inconsistencies between the witness' testimony and the documentary
evidence, or between their evidence and that of other witnesses?
b) Did the witness have an interest in the outcome or were they personally connected to either party?
c) Did the witness have a motive to deceive?
d) Did the witness have the ability to observe the factual matters about which they testified?
e) Did they have a sufficient power of recollection to provide the court with an accurate account?
f) Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10)
g) Was there an internal consistency and logical flow to the evidence?
h) Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
i) Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
j) Is there independent evidence that confirms or contradicts the witness' testimony?
k) Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).
[71] Typical of so many high conflict parenting cases, like this case, is the distressing volume of written exchanges between the parties and their lawyers, many accusatory and self-serving, often requiring documentary or third-party evidence to discern the accuracy or truthfulness of each party’s narrative. Taking these communications into account when coupled with each party’s trial testimony, neither party in this case was wholly credible about their conflict and parenting challenges but, overall, the evidence of the father is to be preferred to that of the mother. His evidence was more consistent and reliable even though by the time of trial, and afterwards (such as when dealing with reunification therapy) his behaviour was counter-productive.
[72] Some examples (which also touch on the issue of alienation):
(a) When pressed on issues whose answers could cast her in a less than favourable light, the mother’s not infrequent answer was that she couldn’t recall. She couldn’t recall speaking to Mr. Smith on his cell phone when Mr. Smith and her stepbrother (both of whom had histories of violence) approached the father (on crutches) in the practice facility in late January 2013 when SN was at his football practice. In the Court’s view this was clearly an effort to intimidate the father: “thugs” was the Court’s impression. Or she couldn’t recall when SN was hospitalized for some surgery in 2012 (and the father not told about it until afterward and was later refused information about SN from the hospital). Or after her complaining about the father’s excessive calls to the children or his continual failure to answer when they called him, she couldn’t recall being asked to produce the phone records by the father’s lawyer to corroborate her allegation (it was suggested to her that she was trying to create a false record for court purposes). Or that she couldn’t recall paying the almost $70,000 costs awarded to the (then) Law Society of Canada when she was disbarred in 2014. There are many other examples of the mother having trouble in her cross-examination evidence like this;
(b)Two weeks after the January 4, 2013 Order of McGee J. which provided for the children’s overnight parenting time with their father, the mother contacted the children’s school and misrepresented what the endorsement said (the formal Order was not issued until later that February). As a lawyer, one who acknowledged practicing some family law, the mother had a higher duty than a layperson to be truthful. She was less than candid, but the effect was to prevent the father from seeing the children anyway;
(c) On the reasons for her suspension from the practice of law and later disbarment, the mother was reluctant to admit until pressed that she had a disciplinary history, that she had mishandled client funds and was found to be ungovernable;
(d)She restricted the father’s OFW communications with her to parenting time issues only when the father complained about her refusing to discuss with him the activities in which she was enrolling the children without his consent. Paragraph 3 of the Order made by Rogers J on February 13, 2013 clearly permitted such OFW communications. The mother knew that and had to be reminded of that by the father’s lawyer. As a lawyer (even when under suspension) she had a duty to comply with a court Order;
(e) While this Court must assess the mother’s credibility without reference to findings from other courts, the observations of Brunet J. in April 2014 about the mother’s credibility when acquitting the father of the criminal charges involving her after the parties separated cannot be entirely ignored. Her evidence-in-chief in that case stood in contrast to her cross-examination evidence in which the Court commented that the mother was unreliable, often evasive and argumentative even when confronted with documentary evidence whose truthfulness was not challenged by the prosecution. Echoes of these observations permeated the mother’s evidence in this case;
(f) The mother dismissed the father’s parenting concerns in June 2013 after the OCL was appointed stating that “we can both trust the OCL will make the right recommendations for our children”. After counselling Mr. Smith to oppose the OCL’s efforts to obtain disclosure about his past child protection involvements (which further delayed the OCL’s investigation), the mother accused the OCL after those recommendations were made several years later of colluding with the father and representing his interests. This happened after the mother unilaterally made Christmas plans for the children which (at that time) interfered with KN’s time with his father. The father complained to the OCL (his lawyer was on vacation) and Ms. Bruce reminded the mother about the importance of the children having their regularly scheduled time and holiday time with their father. There was nothing in the OCL’s investigation that warranted the mother’s loss of trust in the OCL (except that she didn’t like its’ recommendations) and nothing whatsoever to support the mother’s not unsubtle accusation about Ms. Bruce’s lack of professionalism (which the Court rejects);
(g)As for the father, he ignored the Court’s Order about communicating through OFW when he discontinued its use but his explanation that his views were never considered anyway because the mother did as she pleased anyway resonate with the Court;
(h)During the break in the trial between June and late 2018 the father paid the outstanding child support he owed. He had left the Court with the impression before that there were no outstanding support arrears;
(i) Again, as with the mother, the Court cannot entirely ignore Brunet’s observations of the father’s credibility in the April 2014 criminal trial proceedings. In this trial, the father’s evidence was better corroborated than the mother’s about parenting events. However, he was overly defensive and not entirely candid in explaining the reasons why he wasn’t more cooperative or flexible with the mother about activities in which the children were interested and engaged. His explanation about the event in October 2018 which led to KN not wishing to see him again was not persuasive, notwithstanding the evidence of the husband’s girlfriend.
[73] Viewed overall, the mother’s evidence (which includes Mr. Smith) was less credible than that of the father. While both parties inappropriately involved the children in these proceedings, the mother undermined the children’s relationship with their father and any hope of its rehabilitation before trial. The father’s reactive frustration and insistence on what he perceived were his parenting rights did not undermine his narrative of the parties’ conflict. He is more credible and reliable than the mother.
[74] Which leads to the allegations of alienation and the final disposition the Court made in March 2021.
Discussion
[75] Since the parties separated in mid-2012 (the exact date is unimportant for the parenting component of these proceedings), SN (now 22 years old) has not had parenting time with his father since February 2013, RN (now 14 years old) since June 30, 2016 and KN (almost 17 years old) since October 2018. This Court no longer has jurisdiction with respect to SN’s parenting. Given the ages of KN and RN and KN’s views as reflected in Ms. Guthrie-Douse’s evidence contained in her November 18, 2018 affidavit (the day before the trial resumed)[^24] and this Court’s findings about the parties’ post-trial reunification efforts, the issue about what parenting time regime would be in the children’s best interests is, regrettably, moot. Both parties must bear responsibility for this, especially the mother.
[76] The mother submitted that that she never alienated the children. The fact is that the children had a relationship with their father before the parties separated: now they have none. How did this develop and where does the responsibility lie? Parental alienation “is a legal concept as opposed to a mental health diagnosis”.[^25] In Bors v. Beleuta,[^26] Van Melle J. approved of the following definition of parental alienation described by a Dr. Michael Stambrook in the Manitoba case of L.M.A.N. v. C.P.M.[^27]
It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.
It is an abusive practice. It is child abuse when it occurs. It's emotionally abusive. It cripples and stunts children's development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.
So parental alienation is a process, an interactional process where systematically one parent's role in, for the children is eroded over the course of time. (bolding added)
[77] In Reeves v Reeves[^28], Mossip J. commented on a parent’s duty, despite their personal feelings about the other parent, to support and encourage a child’s relationship with that parent.
- The father’s answer to all allegations with respect to non-compliance with the existing court orders in not facilitating the mother’s access, is that he is only doing what the children want…Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place. (bolding added).
[78] In Jackscha v. Funnell[^29] R.D. Gordon J. emphasized the duty of both parents to ensure compliance with court Orders.
Compliance with custody and access orders may become complicated by the conduct of a third party, the child. Indeed, it is not uncommon for a child to refuse to comply with the terms of such an order. However, in my view, it is implicit in such orders that parents are capable of ensuring the child’s compliance with the order and will take reasonable steps to ensure that compliance.
[79] The mother acknowledged in cross-examination that after June 30, 2016 she left it to RN to decide whether to spend time with his father. RN was eight years old! In L. (A.G.) v. D. (K.B.)[^30] McWatt J. (as she then was) dealt with the concept and qualities of child alienation and its effect on families.
Dr. Fidler testified that children are more susceptible to alienation in certain age ranges. She explained that from 5 to 8 years of age, children can have shifting allegiances to parents. Once a child’s brain develops to a point where the child can hold both positive and negative information about a parent, though, children can become confused. They begin to question whether a parent is telling the truth about things in general or the other parent in particular. When the child reaches the ages of 10 or 11 years old, it can become very difficult for them to hold the different views they may have come to about their parents and, as a result, may choose to side with one parent over the other in order to free themselves from emotional conflict and the stress it causes. This becomes extreme in alienated children of 12 years old and older. These children, Dr. Fidler testified, can internalize the effects of alienation to the point where even the alienating parent could not get the child to visit the alienated parent. The child creates its own reasons to dislike or hate the alienated parent – ones which are not real.
[80] In Hazelton v. Forchuk[^31], Gray J. trenchantly emphasized the importance of quick and consequential action where alienation is suspected, warning that inaction poses serious risks to children’s relationship with their parents, observations that unfortunately apply to the lengthy time between the 2012 start of this case and its 2018 trial.
However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible. (bolding added)
[81] Despite her evidence to the contrary, this Court finds that the mother engaged in alienating behaviour and that, regrettably, the father must bear some responsibility for the outcome that led to the Order made on March 18, 2021 for these reasons:
(a) The mother arranging for Mr. Smith and the mother’s stepbrother to interrupt the children’s time with their father on January 26, 2013 to obtain SN when he was at football practice. Both had histories of violence. What was the message that the mother wanted to convey?;
(b)The mother’s refusal to permit the father to attend SN’s graduation at the end of June 2013 because she couldn’t bear to be in the father’s presence. With Mr. Smith. In a Hall. With other parents. Nothing about SN;
(c) During the time that the father’s bail conditions prohibited his contact with the mother he arranged for a taxi to pick up and return the children. The mother would have Mr. Smith follow in her car;
(d)The father’s evidence, which I accept, that the mother and Mr. Smith would often pick up the children from school before the father could attend there for the children’s time with him;
(e) The mother arranged vacations for the children with her and Mr. Smith with no regard for, or ignoring, the children’s regular time with their father. For one Caribbean vacation, KN was going to have to return early; for another (skiing in Collingwood over Christmas) she accused the OCL of colluding with the father when he protested that the trip impacted his parenting time and the OCL reminded the mother about the court’s Orders. An echo of the mother being “ungovernable”, as was found by the Law Society in her disciplinary proceedings, can be heard here. That she proposed make-up time afterwards does not excuse her failure to coordinate with the father in advance. As for the father, his refusal to communicate through OFW and be more flexible could stem from the fact, which the Court also accepts, that the mother did what she wanted regardless of his wishes;
(f) There is no excuse for the mother letting an eight-year old child (RN) decide what time (in fact, no time) he will spend with the other parent. Dr. Fidler’s observations in L. (A.G.) above, when coupled with those expressed by Gray J. in the passage from Hazelton, also quoted above, are prophetic. The restoration of RN’s relationship with his father is practically impossible now.
[82] It is noteworthy that between the time that the OCL made its recommendations in October 2015 and the early 2018 lead up to trial, there were few court events involving changes to the outstanding parenting Order or involving its’ parenting time breaches, possibly involving contempt. This passage of time did little to enhance the prospects of a more favourable parenting outcome.
[83] There are essentially only four kinds of Orders that a court can make once a finding of parental alienation is made:
(a) Do nothing and leave the child with the alienating parent;
(b)Do a custody reversal by placing the child with the rejected parent;
(c) Leave the child with the favoured parent and provide therapy; or,
(d)Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.[^32]
[84] The only viable outcome in this case would have involved leaving KN and RN residing with their mother and ordering therapeutic intervention. That was the father’s best hope to restore some kind of relationship with KN and RN, but his post-trial behaviour as found by the Court ended any realistic possibility of that approach succeeding[^33]. While the mother may have offered in the end to fund the therapy, the damage was done, the goal achieved-too little, too late.
Disposition
[85] The final Order with respect to parenting was released on March 18, 2021, with these reasons to follow. It provided as follows:
(a) A final Order shall issue pursuant to the Divorce Act (Canada) that the applicant shall have sole parenting time and decision-making authority with respect to KN born […], 2004 and RN born […], 2007;
(b)The respondent shall be entitled to parenting time with the children (including telephone or other social media modality) as the children may wish;
(c) Costs are reserved until disposition of the financial issues between the parties.
[86] As noted above, the costs of the parenting component of these proceedings will be addressed after the outstanding financial issues between the parties are concluded.
Justice David A. Jarvis
Released: September 29, 2021
[^1]: 2019 ONSC 163. [^2]: 2018 ONSC 7315. [^3]: 2020 ONSC 3951. [^4]: Ibid. [^5]: 2020 ONSC 5257. [^6]: This trial started, and the evidence concluded before, recent changes to the nomenclature dealing with parenting. The current terms will be used in this ruling. [^7]: Exhibit # 4, Transcript of Judgment of the Honourable Justice J. Brunet, p.4. [^8]: 2018 ONSC 5983. [^9]: Supra # 4. This summary chronologically collated the involvement of the therapist’s office with the parties and the court’s endorsements. [^10]: Affidavit of Karen Guthrie-Douse sworn November 27, 2020, para. 28. [^11]: Exhibit #1. Affidavit of Karen Guthrie-Douse sworn April 25, 2018. [^12]: Exhibit #45. Affidavit of Karen Guthrie-Douse sworn November 18, 2018. [^13]: Exhibit #10. Letter dated February 16, 2016 from Ms. Bruce to Mr. Jiwa and Mr. Joseph. [^14]: Exhibit #11. [^15]: Supra #11 at para. 27. [^16]: Exhibit 7 being an exchange of correspondence between November 6, 2012 to December 5, 2012 between Mr. Joseph and the mother. [^17]: Exhibit #23, affidavit of Mr. Smith sworn February 27, 2015 at para. 14. [^18]: Supra #1 at paras.72-73. [^19]: Exhibit #35. Letter from Ms. Bruce to counsel dated September 20, 2016. [^20]: Exhibit #53B. [^21]: Exhibit #52. This had been ordered by McGee J. in her Trial Scheduling endorsement dated March 5, 2018. [^22]: Baker-Warren v. Denault, 2009 NSSC 59 (N.S.S.C.) at para. 18. [^23]: 2019 ONSC 3857. [^24]: Supra #11. [^25]: Malhotra v Henhoeffer, 2018 ONSC 6472 at para. 107. [^26]: 2019 ONSC 7029 at para. 119. [^27]: 2011 MBQB 49. [^28]: 2001 CarswellOnt 277 at para. 38. [^29]: 2012 ONSC 4234 at para. 12. [^30]: 2009 CarswellOnt 188. [^31]: 2017 ONSC 2282 at para. 75. [^32]: Supra #24 at para. 110. [^33]: Supra #3.