COURT FILE NO.: FC-18-2314

DATE: 2021/01/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy Mary Alice Casey, Applicant

AND:

Gerald Martin Bergin, Respondent

BEFORE: Somji J.

COUNSEL: Giulianna Ferri, for the Applicant

John Summers, for the Respondent

Deborah E. Bennett, for the Office of the Children’s Lawyer

HEARD: November 10, 2020

reasons for decision on motion for interim primary residential care of the children

Overview

[1] The Respondent Gerald Martin Bergin (“father”) seeks (1) an Order for primary residential care of the parties’ children, or (2) alternatively, a temporary order placing the children in his care for a period of two months. At a minimum, the father seeks some form of increased access. It is the father’s objective to move towards an equal parenting schedule.

[2] The motion involves three children: T.C. (16 years old), J.C. (12 years old), and M.C. (10 years old) (“children”). The Respondent is not T.C.’s biological father, but he has been in the place of a parent since she was three years of age. All the children currently reside with their mother, the Applicant Tammy Mary Alice Casey (“mother”). The mother has interim custody and primary residence of the children as a result of Justice Blishen’s Order dated November 26, 2018. Justice Blishen’s order was put in place as a result of an intervention by the Children’s Aid Society (“Society”) on November 8, 2018. The children have been residing exclusively with her for just over two years.

[3] The father alleges that the mother has alienated the children from him and that it is in the best interests of the children that they be returned to reside primarily with him. The mother denies alienation and argues that parenting cannot be determined in this case on an interim motion given the highly contested and untested facts.

[4] The Office of the Children’s Lawyer (“OCL”) has been engaged to represent the children. The OCL agrees with the mother that the matter should not be decided on an interim motion. Furthermore, it is the express wish of the children to remain with their mother. The OCL takes the position that a forced separation from the mother could traumatize the children and it is not in their best interests that the status quo be changed at this time.

[5] Upon reviewing the motion record filed and hearing the submissions of the parties, I find that the facts are signficiantly contested and the matter too complex to decide the issues of parenting and alienation on the written record alone. The father’s application for primary residential care of the children is dismissed. The children will continue to remain in the care of the mother on an interim basis pending trial.

[6] However, given that the father has not had meaningful access to his children for over two years and as a consequence, there is a significant risk that the relationship will not be salvageable if the status quo continues, this matter has been designated as a priority for the May 2021 trial list. If the parties cannot resolve the matter, it should be proceed to trial as soon as possible.

Issues

[7] The primary issue in this motion is whether the father is entitled to an interim order for primary residential care of the children on the ground of alienation. In order to make that determination, the Court must consider the totality of the evidence to determine whether the best interests of the children, as set out in ss. 24(1) and (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), warrant such an order on an interim motion.

[8] The father also asks that this Court make a finding on this interim motion that the mother alienated the children from him. As Audet J. noted in Hajji v. Al-Jammou, 2020 ONSC 6403, at para. 39, the decision in Fielding “provides a comprehensive framework to analyse and detect alienating behaviours on the part of a parent”. In Fielding v. Fielding, 2013 ONSC 5102, 39 R.F.L. (7th) 59 (Ont. S.C.J.), Justice Mackinnon heard expert evidence in the context of a trial in which parental alienation was alleged. According to the expert's opinion, which was accepted by Justice Mackinnon, parental alienation is established if:

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

b. there is an absence of abuse by the targeted parent;

c. the alienating parent uses many of the alienating strategies; and

d. the child exhibits most of the alienated child behaviours.

[9] A preliminary issue raised by the mother and the OCL concerns whether the issue of parenting and alienation can even be decided on an interim motion.

The Position of the Parties

The father’s position

[10] The father claims that the mother sent the child M.C. to school to make a baseless report that the mother was afraid of the father. This report triggered an intervention by the Society, and the children were apprehended on/around November 23, 2018. Following the Society’s intervention, the father was ordered to leave the home and refused access to the children. He has not been able to access his children for over two years except for a few supervised visits, one of which occurred in December 2018. A few supervised visits occurred during assessments and reunification counselling.

[11] The father alleges that the Society’s decision to apprehend the children was based on a flawed investigation that has had a significant impact on his relationship with the children. The father alleges that since that time, he has been alienated from the children because of the mother’s highly negative influence over them. The father alleges that the mother has maligned him and convinced the children to be afraid of him. The father posits that if immediate steps are not taken to prevent further alienation, it will become difficult, if not impossible, to restore his relationship with the children. The father has been emotionally devastated by the loss of access to his children over this two-year period.

[12] Since November 26, 2018, the father’s access has been at the discretion of the Society. However, on September 9, 2020, the Society withdrew its child protection application. Following the Society’s withdrawal, the father brought a motion on September 22, 2020 to have the children placed in his primary care and/or to restore some level of access. That was the subject of this motion which I heard on November 10, 2020.

The mother’s position

[13] The mother takes the position that the matter should not be determined on interim motion as the written record is inadequate to make the necessary credibility and factual findings. The facts are contested and contradictory and should be tested at trial. The evidence filed in support of this motion does not in and of itself establish alienation. Furthermore, the mother argues that the father has not established that a change in the status quo is warranted at this time. There is no evidence that the children are at any risk of harm in her care, and a change in residential care of the magnitude proposed by the father would destabilize the children.

[14] The mother argues that courts are typically very reluctant to disrupt the status quo on interim motions. An interim order for custody and access is intended to stabilize the parties’ circumstances until trial, when a full and complete consideration of the facts can be conducted: Holland v. Fowler, 2011 ONSC 4545, at para. 24. Therefore, there is a high threshold to be met by a parent seeking to change the status quo prior to trial: Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.), at para. 15; J.D. v. N.D., 2020 ONSC 7965, at para. 10.

[15] The mother seeks that the entire motion be dismissed and that she retain interim custody and primary residence of the children. The mother agrees to the father having supervised access in the presence of a trained professional and only in the context of reunification counselling. The mother does not oppose visits with T.C. on her terms. I note that in April 2020, the father did have a successful supervised virtual visit with T.C The visits came to a stop and the parties dispute the reasons for this.

[16] The mother also seeks an Order:

a. That the father be solely responsible for the costs associated with reunification counselling;

b. For retroactive child support and an increase in ongoing child support and section 7 expenses based on the father’s increased annual income estimated at $133,184; and

c. Various procedural adjustments to address special expenses of the children other than reunification counselling.

Position of the OCL

[17] In determining this motion and whether the primary residence and access should be changed, even on an interim basis, I must consider the best interests of the children as per ss. 24 (2) of the CLRA. One of those considerations is the children’s views and preferences, if they can reasonably be ascertained: CLRA, s. 24(2)(b). The OCL was engaged to report on the children’s wishes. The OCL takes the following legal position with respect to each child:

a. That T.C. is a youth and could agree to contact with the father subject to her wishes and on her terms;

b. That the boys J.C. and M.C. do not want to live with their father. They do not have positive memories of him and do not trust him. Furthermore, if they were sent to live with him, they would feel scared and angry. However, the boys have been advised that the court may order them to return to reunification counselling, possibly with Ms. Claridge, and they would be expected to cooperate.

[18] The OCL posits that the issues of parenting in this case are complex and that the matter cannot be decided on the written record alone. Alternatively, the OCL takes the position that the father has not provided sufficient evidence to demonstrate why it is in the best interests of the children to be placed with him at this time. The OCL notes that the parties agree that the family history is filled with acrimony and strain, but each parent blames the other for the conflict. Furthermore, the Family Court Clinic Assessment Report (“FCCA Report”) makes clear that the toxic family history did not commence with the intervention of the Society in November 2018, but existed long before then.

Analysis

[19] This is a highly contested matter. There have been multiple legal proceedings involving the parties and the Society. On August 30, 2019, Justice Corthorn held, on consent of the parties, that the children were in need of protection and ordered a Family Court Clinic Assessment (“FCCA”) to assist the Court as well as reunification counselling with Janet Claridge funded by the Society.

[20] The FCCA was conducted by Dr. F. Wood and a team of professionals from the Family Court Clinic (“FCC”) and completed on January 16, 2020. The parties agreed to participate in further reunification counselling with Janet Claridge in March 2020 funded by the father. That process stopped when the father cancelled it in July 2020. The parties dispute the reasons for ending this counselling. The Society withdrew its Protection Application in September 2020 following which the father brought this motion.

[21] The FCCA Report is 135 pages single spaced. It is a detailed report and provides considerable background information about the children, the parents, and the family environment. Dr. Wood concludes that the parents had an acrimonious relationship, and as a result, the children were living in a toxic family environment for some period prior to the Society’s intervention. Dr. Wood concludes, however, that each parent blames the other for the cause of this home environment, and ultimately, the contradictory evidence makes it difficult to ascertain what truly was going on in the home. Dr. Wood makes it clear that the children have been exposed to information that suggests the possibility of alienation by the mother but does not provide any conclusive expert opinion on alienation as alleged by the father.

[22] The FCCA Report does make the following recommendations for the next steps this family should take as follows:

a. That the children continue to reside with the mother;

b. That the children should continue to attend therapy with their current therapists;

c. That the father’s access to the children should occur in the context of a trained professional;

d. That the father should engage in a parenting program for children on the autism spectrum; and

e. That the family should begin reunification counselling.

[23] Upon reviewing the documentary evidence filed in support of this application, including the FCCA Report, and upon hearing the submission of the parties as well as the OCL, I find that this Court cannot properly decide the issue of parenting and alienation on the written record alone. A proper trial is required on the merits. My reasons for this finding are set out below.

[24] One, the facts in this case are highly contested. The parties dispute many issues and credibility assessments will have to be made in order to make findings of fact. As stated in the FCCA Report, both parents agree that they were living in a tense and toxic home environment before the Society’s intervention, but each parent attributes the cause of the disputes and disagreements to the other parent. It is not possible to accept one version of events over the other without the evidence being properly placed under oath and tested. The current evidentiary record is insufficient to resolve the credibility issues: Cojbasic v. Cojbasic (2008), 2008 CanLII 8256 (ON SC), 52 R.F.L. (6th) 191 (Ont. S.C.), at paras. 11-13.

[25] Two, this case is ultimately about parenting and whether the father is presently fit to parent such that custody and access of the children can be restored to him in the manner requested. The Society’s intervention and the father’s immediate loss of access to the children arose as a result of a single report by one child to the school. Since that time, however, the children have reported to various professionals that the father is mean, that he hurt them, and that they fear him. The question for the trial judge will be whether there is any evidentiary basis to any of these claims, and if so, what impact these claims have on his parenting.

[26] The father argues that his conduct as described by the children is a result of the mother’s alienation. The father argues that this Court can rely on the FCCA Report to make that finding. I agree that both the reunification counsellor Ms. Janet Claridge in her report and Dr. Wood in the FCCA Report state that the children’s fears appear to be disproportionate to the conduct that they describe on the part of the father which may suggest that they have been negatively influenced by the mother: FCCA Report, at p. 124. However, these professional experts do not make any conclusive findings on whether the conduct described by the children did or did not occur and furthermore and whether it is solely the result of the mother’s negative influencing. These are factual determinations that will have to be made by the trial judge

[27] This Court must take the children’s expressions of fear of their father and the source of those fears seriously. Having said this, this Court must be equally careful to ensure that there is some factual basis for those fears. Even before examining the conduct of the mother to ascertain whether alienation has occurred, factual findings will have to be made to determine whether there is any truth or factual basis for the conduct described by the children and if so, whether it has any impact on his fitness as a parent.

[28] Even if the Society’s investigation was flawed as alleged by the father, the reality is that in the FCCA Report, the children have described conduct on the part of the father that causes them to fear him. Some of the conduct was described directly by the children to Dr. Wood and other conduct was described by the children to other professionals and recorded by Dr. Wood. Some of the conduct referred to in the FCCA Report as described by each child is as follows:

A. T.C.

➢ The father told her before leaving for a wedding that he would make her wear a garbage bag if she did not behave: at p. 78.

➢ He always did this to her before they left home, went to restaurants, or vacations, where he was harsher than usual: at p. 78.

➢ The father would easily dole out punishments and expected obedience: at p. 78.

➢ If her brothers were telling a joke and they were all laughing in a store, he would seemingly get mad and yell at them in the store: at p. 78.

➢ If they were at home, particularly when cleaning, he would yell at her and make her do chores again if he felt she did something wrong: at p. 78.

➢ He would use intimidation a lot where he would make his voice louder and get in their faces: at p. 78.

➢ If they were too loud or knocked something over in a store, he would become threatening, get up into their faces at a store, become “slightly angry” at first, and then “take that mask off” when they were in the car or at home: at p. 78.

➢ He would threaten everything away and do extensive timeouts for 30 minutes: at p. 78.

➢ He would be aggressive when he grabbed her, but this would never occur when her mother was around: at p. 78.

➢ He was sometimes “creepy” where she would catch him staring at her intensely and then state “I own you” when asked why he was staring: at p. 86.

➢ He was manipulative when he presented M.C. with a tablet during a supervised visit: at p. 86.

➢ He always tried to threaten and make you feel guilty or ashamed: at p. 86.

➢ He picked her up by the collar of her shirt and threw her across the floor with her foot hitting the dog’s water bowl when she was about eight years old: at p. 86.

➢ He would “grab you [when] joking around, it felt like crushing bones…when my mom would go the store and he would be alone with us…he would grab our legs or thighs and dig his hands into them…jokingly but it really hurt, he wouldn’t stop when we asked him to until mom came back…my brothers would cry from pain”: at p. 86.

➢ She did not like the way Marty touched her, where she would be uncomfortable: at p. 86.

B. J.C.

➢ J.C. has been consistent in the message that his father “hit, yelled, pushed, and sworn” at him and others in the family: at p. 100.

➢ J.C. recounted that on one occasion he was “pushed” on the couch and he reacted by running to his room and staying under the covers: at p. 100.

➢ J.C. states his father would bring him and his siblings to a place such as Wal-Mart and he would yell and swear at them in the vehicle if they misbehaved: at p. 100.

➢ One time his father “grabbed [him] and yanked [him] to go look at something else”: at p. 100.

➢ His father would playfight with him “but [it was] rough – he thought it was playing but I didn’t – I got hurt”: at p. 100.

➢ There was an incident where his father kept yelling at him, was red in the face with his hands “clamped”, and made him go to his room: at p. 100.

➢ The father would call him names (i.e. baby), swear at him, or push him in the chest…. It hurt a little and push would be for no reason: at p. 103.

C. M.C.

➢ His father “yelled” a lot “for no reason”: at p. 114.

➢ His father stepped on his chest and made it difficult for him to breathe: at p. 114.

➢ His father made him strip copper wires early in the morning: at p. 114.

➢ There was a time when he was lying on the ground in the kitchen and his father stepped on his chest on purpose and was pushing harder, which he felt was child abuse: at p. 116.

➢ He indicated that something like this would happen once or twice a day, and that his father yelled at the kids “like the way you’d yell at someone you were really mad at”: at p. 116.

➢ The father “called me names sometimes…he would think it was funny to lie down on us on the couch so we couldn’t use the TV or technology”… He would tell his father to get off of him and that he could not breathe, but his father would be laughing and say “you guys are not strong…he would call us babies, use swear words”: at p. 116.

➢ His father would carry on too far when they were wrestling, play fighting: at p. 116.

[29] The children also express many of these same sentiments regarding their father in their interviews with the OCL investigator at as set out at pp. 11-14 of the OCL Investigation Report dated October 31, 2020. I also note that according the FCCA Report, when the father attended his first meeting with the Society on November 26, 2018, he was provided an itemized list of the things he was alleged to have done to the children.

[30] Ultimately, it will be up to the trial judge to assess the evidence presented at trial to determine if these incidents as described by the children occurred, what they involved, whether the children were influenced in their reporting, the father’s interpretation of the events in question, whether this conduct has any bearing on the father’s fitness as a parent, and what steps, if any, need to be taken by the father and the family before physical access can resume. This assessment cannot be done on the written record alone and without each party, including the father, having the proper opportunity to present the relevant evidence in support of their position.

[31] I wish to reiterate that the purpose in highlighting the conduct described at para. 28 of these reasons is to make clear that findings of fact need to be made by a judge before concluding on the father’s fitness as a parent and on whether alienation has occurred. I am not drawing any conclusions at this time. In fact, I acknowledge that Dr. Wood states in his concluding remarks at p. 132 of the FCCA Report that the conduct described is not necessarily abuse:

Overall, it is recommended that Marty participate in parenting classes or educational resources focused on having children with autism and emotional difficulties, as this may help him improve his bond with the children. While there is no clear evidence of abuse, it is evident that the children have viewed him as being an aggressor, and he would benefit from learning how to reduce this image and being able to see their perspective of things regardless of whatever influence Tammy may have had in that. [Emphasis added.]

[32] It will be for the trial judge to consider and weigh this opinion when making his/her findings along with any other expert opinions that are introduced, admitted, and tested.

[33] I would also add that none of the health professionals engaged suggest that the children are presently at risk of physical harm with the father. The primary issue has been addressing the source of the children’s fears of their father and any risk of further emotional harm.

[34] It is important to add that Dr. Wood was alive to the fact that the mother could have been responsible for the chaotic home environment before the parties’ separation, and if such a finding is made, the Court would have to consider placing the children in foster care or returning them to the father’s home: FCCA Report, at p. 134. Due to the contradictory accounts from each parent, Dr. Wood and his team were not able to ascertain what exactly transpired in the home prior to the CAS intervention in November 2018: FCCA Report, at p. 132. Hence, the relevant evidence will have to be presented by each party and tested so that factual determinations can be made by this Court.

[35] Three, the mother alleged in the FCCA Report and to the Society that the father was emotionally abusive throughout their relationship. The mother does not allege physical abuse. The father disputes these allegations of emotional abuse and states that much of their spousal conflict is due to the mother’s own insecurities and mental health issues. The father relies, in part, on the FCCA Report where Dr. Wood opines that the mother may have exaggerated the parties’ arguments and confused emotional facts with actual facts: FCCA Report at p. 49. The father also relies on the evidence of the maternal grandparents, the maternal great aunt, and Taylor’s biological father’s family who have suggested that the mother has a history of mental health issues and a pattern of alienating family members from the children. The mother is equally entitled to lead evidence contradicting these assertions at trial. This is all evidence that must be presented, tested, and assessed before factual findings can be made. The trial judge will have to assess whether there is any evidentiary basis for the mother’s claims of emotional abuse or if they can be attributed to the mother’s own psychiatric history and pattern of alienation.

[36] Four, the evidence with respect to alienation is also contested and must be tested at trial. The father alleges that the children’s fears are the result of the mother’s negative messaging about him to the children. The mother argues that the children have become estranged from the father because of his own actions and behaviours during the marriage. She argues that the father’s strained relationship with the children was exacerbated by the father’s actions post-separation. In this regard, she cites the examples of the father terminating communication with the Society, ending contact with Taylor, and terminating reunification counselling.

[37] There is some credence to the claim of alienation in the evidentiary record filed. Dr. Wood states in his concluding remarks at p. 126 of the FCCA Report:

[T]he FCC acknowledges that all three children support their mother’s view of the home environment prior to the separation, and that they have repeatedly made mention of this in their individual counselling sessions. However, the possibility that direct or indirect influence by their mother, thereby promoting parenting alignment, cannot be ruled out. [Emphasis added.]

[38] The OCL Investigator also grapples with the issue of alienation. She states at p. 17 of her report dated October 31, 2020:

Mr. Bergin alleges that Ms. Casey has intentionally severed the relationship between himself and his children by turning his children against him. The children’s extreme dislike and fear of their father, in the absence of incidents to warrant such fear, is very difficult to reconcile.

[39] Dr. Wood also acknowledges the involvement of other external factors that could have reinforced the children’s fears such as (1) the Society’s abrupt intervention suggesting they were in danger, and (2) the mother’s involvement of Bikers Against Child Abuse (BACA) which possibly caused the children to believe they were in need of protection: FCCA Report, at p. 124. The evidentiary basis for these explanations and their causal connection to the children’s fears will have to be assessed by the trial judge in assessing alienation as per the legal definition of the term.

[40] Five, findings of fact will have to be made by the trial judge with respect to the home environments and parenting plans of each parent going forward. The mother and father are no longer residing together. In this respect, much of the toxicity that the kids were previously exposed to as a result of the spousal conflict has now been diffused as the parents are no longer in the same home. However, the Court will still have to consider the stability of each parent’s home going forward in assessing the parenting plan. The father alleges that the mother’s pattern of relationships places the children at increased risk of instability in the home. The father has commenced a new relationship and has filed evidence indicating that it is a stable and loving home environment in which he can care for his children. The father’s new partner participated in the FCC Assessment whereas the mother’s current boyfriend did not which was of concern to Dr. Wood in terms of being able to fully assess the stability of the home environment offered by the mother. The father takes the position that he has followed through on the necessary courses recommended by the FCC.

[41] The mother, on the other hand, expresses in her affidavit concerns about the father’s new spouse and the prospective home for the children. The mother questions the father’s commitment to following through on the recommendations of the FCCA Report in rebuilding his relationship with the children. As an example, she cites his cancellation of the reunification counselling in July 2020 when the reunification counsellor would not permit a face-to-face meeting with the boys. The mother claims the father has not taken the recommended courses on parenting. In short, factual findings will have to be made in all these respects before determining an appropriate parenting plan going forward.

[42] Six, I agree with the mother and the OCL that the FCCA Report alone cannot be relied on to make a just determination on parenting at this interim stage. An assessment report should only be relied upon in rare circumstances on an interim motion if there is something in the report that requires scrutiny and calls for a variation in the existing custody and access arrangement: Genovesi v. Genovesi (1992), 1992 CanLII 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Gen. Div.), at p. 32; Grant, at paras. 15-17. I find that this is not one of those cases.

[43] The FCCA Report contains considerable information that has not been tested. Much of what each party states to Dr. Wood’s team in the report is contradicted by the other party. The FCCA Report also contains hearsay and double hearsay, and it is unclear what facts within it are being admitted by both parties. As Counsel for the mother points out, and I agree, there is a danger in each party relying only on piecemeal statements from within the FCCA Report that are favourable to their position.

[44] Furthermore, the FCCA Report is not as unequivocal in its findings as the father suggests. For example, while the FCCA Report supports the possibility of alienation by the mother, it does not make any conclusive findings on alienation. Rather, Dr. Wood appeared to be cautious in his remarks. For example, in discussing the possibility of alienation in the context of T.C., Dr. Wood states at p. 126 of the FCCA Report: “Although it is unclear if there has been any purposeful parental alienation, it is in fact clear that T.C. has been exposed to inappropriate adult information from her mother, which may have indirectly aligned her towards her mother” (emphasis added).

[45] In short, the FCCA Report is just one of many reports, if held admissible, that the trial judge will have to consider and weigh along with the rest of the evidence presented in assessing the issues of parenting and alienation.

[46] Finally, even if the trial judge were to find the father is fit to parent and that physical access can resume, careful consideration will have to be given as to how that plan will unfold. This is quite simply because, rightly or wrongly, the children have made it very clear they do not wish to reside with the father. As already noted, the children’s wishes are a factor for consideration in assessing the best interests of the children.

[47] The OCL has indicated that a forced separation from the mother could be viewed as a traumatic event. The children’s sentiments are so strong in this regard that the OCL posits that if they are returned to reside with the father, there is a risk that they will place themselves in a dangerous situation in order to return to their mother. This is especially the case with M.C. who expressed such plans to his psychologist.

[48] Dr. Wood’s team was also not in support of the children’s return to the father when it concluded the FCCA Report a year ago in January 2020. It was recommended that the children remain in the primary care of the mother. Dr. Wood concluded as follows at p. 133 of the FCCA Report:

On consideration of the above, it is the Family Court Clinic’s opinion that there is no alternative than leaving the children in the care of their mother. However, as mentioned above, the FCC is not able to fully confirm the stability of the current home she is providing, as her partner, Rick, was not part of this assessment, and there is a lack of clarity regarding the mother’s mental health and behaviors over the years.…

The FCC does not make this suggestion lightly, as it is recognized that Marty is distressed by the sudden and ongoing separation from his children and the resentment the children have displayed towards him.

[49] The FCC was also concerned, as indicated by the OCL, that a forced separation could be traumatic for the children. The following references in the FCCA Report, at pp. 90, 107, 114, 129, and 119, illustrate this point:

T.C.:

It is the FCC’s opinion, however, that T.C. is of the age and cognitive capacity to decide her home placement while taking into account her long-term best interests. It is clear that T.C. is quite attached to her mother and has the desire to remain in the home with her while having no to limited contact with Marty. Nevertheless, it also appears that T.C. seemed to be somewhat conflicted with regards to what type of contact she would like with Marty.

J.C.:

The FCC suggests that, in addition to J.C.’s perception of his father being an aggressor, he likely also has loyalty conflicts, where it is clear that his mother was unhappy with his father and he was exposed to some of her reactions in response to his father. He is perhaps the child with the most loyalty conflicts, since it seems that he and his father had the strongest bond prior to CAS intervention. Moreover, it is clear that J.C. has a strong attachment to his mother, and that any forced separations could result in significant emotional turmoil. [Emphasis added.]

M.C.:

Dr. Chang advised that … [M.C.] has stated that he would not feel safe alone with his father, and another adult would need to be present.

Although it is the FCC’s opinion that M.C. is not of the age or cognitive capacity to make placement decisions based on his long-term best interests, he would clearly be in distress if he were to be separated from his mother, particularly given his current level of anxiety whenever she leaves the home.

Even when asked what he would expect his father to do during a supervised access visit that would warrant such concerns, M.C. was unable to come up with any clear answers aside from saying that his father would make “the face” or act out despite the presence of an authority figure. Nevertheless, these continued endorsements do suggest that his relationship with his father is strained and is quite a ways from reconciling.

[50] All three children have special needs. In particular, both the boys have been diagnosed with high functioning autism spectrum disorder. Despite their various needs, the children are high functioning and academically strong. I agree with the OCL that stability and routine are particularly important for these children. As indicated by Dr. Wood at p. 128 of the FCCA Report, this was of particular concern for J.C.: “Regardless, J.C. clearly has a strong attachment to his mother and would be quite distressed by any forced separations, particularly given his autistic traits and need for routine due to his cognitive rigidity.”

[51] I must add that all the children have expressed some level of resentment, as noted in the FCCA Report, at p. 132, that the professionals did not believe their disclosures and that their wishes were not considered during various stages of the proceedings such as the CAS intervention and reunification counselling. While it is acknowledged that the children’s wishes are not always synonymous with their best interests, their voices, represented in part by the OCL, must be respected.

[52] This is not to say that the children’s wishes will always prevail and that restoration of the father’s access on a gradual basis is not possible. I also appreciate that the loss of access for the past two years has caused the father considerable emotional distress. Nonetheless, in the face of the children’s express wishes to not presently reside with the father and in light of the concerns raised by various professionals about the negative impact of a forced separation from the mother, I find that this Court must proceed with care and caution in making a final determination on an appropriate parenting plan and only after having carefully considered all the relevant evidence.

[53] I acknowledge that there are cases in which the courts have deviated from the status quo on an interim motion. In this regard, Counsel for the father urges me to consider the recent decisions of Justice Audet in Ma.M. v. A.W.M., 2019 ONSC 2128, Justice Engelking in M. v. M., 2020 ONSC 898, and Justice Mackinnon in Stakenvicius v. Coates, 2020 ONSC 3966, as examples of cases where the judge found alienation and/or ordered a reversal of the parenting arrangement at an interim motion. I find, however, that these cases are distinguishable.

[54] The facts in Ma.M. v. A.W.M. were highly distinguishable from the facts in this case. First, in Ma.M. v. A.W.M., Audet J. was able to make credibility findings at the interim stage. There was considerable evidence presented that the mother had lied to the father about the whereabouts of the child, that she had lied to the court that she had been directed by CAS to withhold access, that she had lied to the court about the scope of the CAS investigation, and that she had made allegations that she had been physically abused that were unsupported by any objective evidence. Furthermore, the mother had specifically withheld the father’s access in breach of an initial separation agreement and an interim court-ordered parenting arrangement. In this case, the evidence presented is contested and contradictory and the Court is not in a position to make such egregious findings of credibility as against the mother. Second, in Ma.M. v. A.W.M., the evidence presented was that the child shared a positive relationship with the father until the time of the separation. In this case, there is evidence in the FCCA Report that the children fear the father and this needs to be factually addressed before access can be restored. Third, in Ma.M. v. A.W.M., the CAS supported the father’s access to the child. Here, the professionals engaged in this case do not support the immediate return of the children to the father’s primary care. Fourth, in Ma.M. v. A.W.M., access with the father was ongoing and positive and the main issue was whether primary residence should be reversed to minimize further alienation. In this case, there has been limited access with the father, albeit not by his choice, and the Court has to contend with the children’s current express wishes not to reside with the father and the OCL’s position that a forced separation from the mother could traumatize the children.

[55] The case of M. v. M. can also be distinguished. In that case, there had been a simple separation with no evidence of a prior toxic relationship. The children engaged in positive supervised access visits with the father. The mother was found to have obstructed the father’s access visits, failed to support a relationship between the father and the children, and breached various court orders concerning access. The reunification counsellor Ms. Savage also expressed her professional opinion that the mother was unable to put the best needs of the children first and that drastic measures were needed to protect the children from further psychological abuse by the mother. Ms. Savage had recommended the children be placed in the sole custody of the father. These facts are simply not what is before me on this interim motion. Furthermore, the evidence in M. v. M. was led at trial where the court had the benefit of hearing from witnesses and experts who were subject to cross-examination which is not the case here. Finally, even though Engelking J. found that the mother had alienated the children she refused to order a change in custody after a trial as being in the best interests of the children. This was because Ms. Claridge, who also happened to be involved in that case, testified that it would be very difficult for the children to go from having hardly any contact for over the past two years to a change in custody: M. v. M., at para. 73.

[56] In Stakenvicius v. Coates, Mackinnon J. held that although a motion record is not perfect, if a court is satisfied that the written record supports a clear finding that the parent with primary care was contributing strongly to or causing contact problems between the child and the other parent, the court could reverse the existing parenting arrangements: at paras. 156 and 161. For the reasons cited above, I am not satisfied that the motion record in this case supports that the children’s fears of their father are entirely attributable to the mother and that a complete reversal in the parenting arrangement is in the children’s best interests. As already indicated, the children fear their father. While the father takes the position that these fears are entirely of the mother’s making, the evidence on this point and the issue of alienation is contested and controversial. The Court must assess the evidentiary basis for the children’s fears and make certain factual findings before it can proceed with a change in the existing parenting plan. I am not satisfied that this can be done on the current motion record.

[57] Ultimately, each case must be decided on its own facts. I find that in this case, until such time as there can be a full trial on its merits, it is in the best interests of the children to continue residing primarily with the mother. I find that on balance, the best interests of the children as per ss. 24(1) and (2) of the CLRA favours maintaining the status quo in the interim pending trial for the following reasons:

a. The children have strong emotional ties with their mother: s. 24(2)(a).

b. The children wish to reside with their mother: s. 24(2)(b).

c. The evidence presented to date indicates that the children’s relationship with their father is strained and various health professionals recommend additional reconciliation counselling to rebuild the relationship before unsupervised access can be restored: s. 24(2)(g).

d. The children have lived with their mother all their lives and exclusively with their mother for the last two years. The children’s needs are currently being met. They are functioning well at home and in school. The mother is following the recommendations of the FCCA Report. She has ensured that the children continue to get the necessary treatments for their special needs as well as therapeutic care from psychologists. There is no risk of harm to them warranting an immediate change: ss. 24(2)(c) and (d).

e. The children require stability particularly because of their special needs: s. 24(2)(f).

f. As explained above, the father’s factual and legal basis for a reversal of primary residence is contested. Furthermore, the health professionals engaged in this file and the OCL do not recommend a change in primary residence at this time because of the potential risk of harm to the children. The father has also not provided a detailed plan of what primary residential care would be, particularly in light of the children’s special needs: ss. 24(2)(d) and (e).

[58] In conclusion, the parties disagree on many issues, but the most controversial area and the biggest hurdle in moving forward is the conduct of the parties prior to separation. Unless the parties can come to an agreement on the facts with respect to the state of the affairs within the home prior to separation and some reconciliation with respect to their respective responsibility in contributing to that environment, this matter will have to proceed to trial and factual findings will have to be made. It is only once these issues are resolved that the parties, along with this Court, will be able to move forward with implementing an appropriate parenting plan that respects the children’s particular needs and concerns as well as the right of each parent to have a meaningful relationship with the children.

[59] The father’s motion for interim primary residence of the children on the basis of a finding of alienation is dismissed.

[60] The mother’s requests for child support and corollary relief is also contested and should also be addressed at trial.

[61] The FCC has recommended the family return to reunification counselling. The OCL Investigation Report also supports reunification and a slow and supported process for rebuilding the father’s relationship with the children. Counsel for the father indicated in oral argument that the father would be agreeable to any form of increased access. The mother indicates that she is supportive of the children having a relationship with the father and of supervised access in the counselling context. I understand that the OCL has prepared the children that such supervised access may be ordered by the Court.

[62] There will be an Order as follows:

a. The mother shall have interim sole custody and primary residence of the children T.C., J.C. and M.C.

b. The father and children shall re-engage in reunification counselling with a reunification counsellor approved by the OCL.

c. The children shall continue with their individual therapy through Emerging Minds in order to support the reunification counselling process and ensure the best chance of success.

d. The father shall have access with the children with a trained professional and in the context of reunification counselling. The father’s access shall be reviewed at regular intervals in consultation with the reunification counsellor. Any changes to the father’s access shall be based on agreement between both parties and shall take into consideration the children’s views and preferences.

e. The mother shall not discuss the contents of those counselling sessions with the children.

f. Should the children have questions or concerns about the reunification process, counselling sessions, or the legal proceedings related to this matter, the mother shall encourage the children to address these questions or concerns with OCL counsel, the reunification counsellor, or their therapists at Emerging Minds.

g. The father shall be solely responsible for the costs associated with reunification counselling involving him and the children. Should the mother fail to bring the children to the reunification counselling, she shall be responsible for the costs of the missed session.

h. Should the reunification counsellor require counselling sessions with the mother or with the mother and the children together, the mother will participate in such counselling. The mother shall be solely responsible for the costs associated with those sessions.

i. The father shall have virtual access to T.C. under the terms and conditions she requests. If T.C. requests supervised virtual access, it will be with the supervisor of her choice.

j. Each party will refrain from making negative comments about the other parent in the presence of the children.

k. The father will provide the mother a copy of all of T4s from all of his income sources for 2020 within 30 days of this judgment.

l. The father shall provide a copy of his 2020 Income Tax Return to the mother immediately upon its completion.

Next Steps

[63] The FCCA Report makes clear that the possibility of alienation is a live issue in this case and cannot be ruled out: FCCA Report, at p. 133. As the Court noted in Hazelton v. Forchuk, 2017 ONSC 2282, 93 R.F.L. (7th) 254, at para. 75, the urgency raised by parental alienation necessitates early and decisive intervention by the court. If not addressed in a timely manner, the poisoning of the children’s minds will continue and restoration of the relationship with the other parent can become more difficult if not impossible.

[64] The father has not been able to meaningfully access the children for over two years. Even in the absence of a finding of alienation, if the father is unable to access the children and meaningfully connect with them soon, there is significant risk that he will not be able to restore his children’s trust and resume a healthy relationship with them. For these reasons, it is imperative that this matter proceed to trial as soon as possible. In this regard, this matter has been designated as a high priority matter for the May 2021 family trial list.

[65] Finally, as noted by Dr. Wood, the final determinations of the Court will take into consideration which parent can best ensure there is a reasonable relationship with the other: FCCA Report, at p. 134. This includes ensuring that (1) the children are not exposed to negative messaging about the other parent; (2) the children are shielded from the parental conflicts as these legal proceedings continue; and (3) each parent supports the children’s relationship with the other parent.

Costs

[66] The mother is the successful party on this motion and entitled to costs. If the parties are not able to come to an agreement on costs, both parties may file submissions with the court. These submissions should not exceed three pages plus attachments of Offers to Settle and Bill of Costs. The applicant should deliver her submissions by February 10, 2021, the respondent by February 24, 2021 and a brief reply by March 1, 2021. Submissions are to be sent by email to scj.assistants@ontario.ca

Somji J.

Date: January 28, 2021

COURT FILE NO.: FC-18-2314

DATE: 2021/01/28

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Tammy Mary Alice Casey, Applicant

AND:

Gerald Martin Bergin, Respondent

BEFORE: Somji J.

COUNSEL: Giulianna Ferri, for the Applicant

John Summers, for the Respondent

Deborah E. Bennett, for the Office of the Children’s Lawyer

reasons for decision on motion for interim primary residential care of children

Somji J.

Released: January 28, 2021