M.S. v. K.A., 2021 ONSC 7853

NEWMARKET COURT FILE NO.: FC-18-56811-00

DATE: December 3, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.S. Applicant

– AND –

K.A. Respondent

COUNSEL:

D. Bourque, for the Applicant

Self-represented, for the Respondent

HEARD: November 15 – 25, 2021 inclusive

REASONS FOR DECISION

MacPherson J.

Relief Requested

[1] The Applicant requests an Order:

(a) for joint decision-making of the child, MA-S born in 2012;

(b) that MA-S reside primarily with the Respondent and secondarily with the Applicant;

(c) that the Respondent pay Guideline child support; and

(d) that the Respondent pay a proportionate share of section 7 expenses.

[2] The Respondent requests an Order:

(a) for sole decision-making authority;

(b) that the Applicant pay Guideline child support; and

(c) that the Applicant pay his proportionate share of section 7 expenses.

[3] The Respondent, during the trial, withdrew her retroactive section 7 claims.

Brief Factual Background

[4] MS was born in 1980.

[5] KA was born in 1978.

[6] The parties met in or about September 2010 and started dating.

[7] The parties were never married.

[8] The parties never lived together.

[9] The relationship ended in or about November 2011.

[10] The parties each have one child, MA-S born in 2012.

[11] The Applicant resides in Toronto.

[12] The Respondent resides in Richmond Hill.

[13] The Applicant works for the Ontario government earning approximately $105,170 annually.

[14] The Respondent is not working. She has not worked since March 2020.

[15] The Applicant currently pays child support, monthly, in the amount of $951 based on his 2020 income of $105,170.

[16] Clinician, Allyson Gardner, completed an assessment through the Office of the Child’s Lawyer. The assessment commenced in April 2019.

[17] Ms. Gardner completed two assessment reports: the first, an interim report dated September 9, 2019; and the second, a final report dated September 24, 2020.

Overview of the Position of the Parties

Applicant

[18] The Applicant states that the Respondent has made all decisions for MA-S since birth without consulting him and, when he expresses a contrary opinion, the Respondent proceeds without consideration of his position. The Applicant states that he is left in the dark regarding MA-S’s extra curricular activities, schooling, and health.

[19] The Applicant alleges that the Respondent has unnecessarily interfered with and restricted his parenting time by alienating MA-S from him and permitting MA-S to decide if she will attend parenting time. The Applicant enjoyed (day-time visits only) parenting time with MA-S until 2018. Since 2018, the Applicant has almost no relationship with MA-S. Although MA-S is 9, she has never had an overnight at the Applicant’s home independent of the Respondent. The Applicant states that if MA-S is not placed in his care, MA-S will never have a relationship with him.

Respondent

[20] The Respondent states that MA-S has resided with her since birth. It is she who has made all decisions for MA-S. The Respondent states that the communication between she and the Applicant is very poor such that she requests sole decision-making authority.

[21] The Respondent states that she has always facilitated and encouraged MA-S to have a relationship with the Applicant. The Respondent states that in the first few years, the Applicant never requested overnights. The current lack of relationship between the Applicant and MA-S, she says, has little to do with her and everything to do with an incident dated April 1, 2018 where, she believes, the Applicant grabbed MA-S by the arm and locked her in the bathroom. MA-S is now afraid of the Applicant and will not attend parenting time with him. The Respondent states that she is agreeable to participating in reunification therapy to repair the relationship between the Applicant and MA-S.

Issues to be determine

[22] There are two significant issues the Court must determine:

a) what is in MA-S best interest in terms of parental decision-making and parenting time?

b) What is the quantum of child support and apportionment of section 7 expenses?

Summary of Decision

[23] On a final basis, MA-S shall reside primarily with the Applicant who shall have sole decision-making authority.

[24] The Respondent shall pay child support to the Applicant based on an imputed income of $26,978 and the parties shall share section 7 expenses in proportion to their income with the Applicant paying 80% and the Respondent paying 20%.

[25] The Applicant shall immediately arrange for reunification therapy and the cost of same will be shared as a section 7 expense.

[26] On a temporary basis, the Respondent shall have virtual parenting time with MA-S, supervised by the Applicant, three times per week.

[27] Face-to-face parenting time between MA-S and the Respondent shall be at the discretion of the Applicant in consultation with the reunification therapist.

[28] The parties shall return to a Trial Scheduling Conference before Justice Himel on April 14, 2022 at 2:00 p.m.to determine if there is a consensus on the Respondent’s parenting time.

[29] If there is no consensus, Justice Himel shall organize a brief trial to occur before me, for one day, on May 16, 2021 on the only remaining issue: the Respondent’s parenting time.

Analysis - Parenting Time and Decision-Making

[30] The parties were never married. Accordingly, the relief claimed is subject to the provisions of the Children’s Law Reform Act (hereinafter “CLRA”).

[31] Section 20 of the CLRA states:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. 2020, c. 25, Sched. 1, s. 2.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child and must exercise those rights and responsibilities in the best interests of the child. 2020, c. 25, Sched. 1, s. 2.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.

[32] Section 21 (1) of the CLRA states:

Application for parenting order or contact order

Parenting order, application by parent

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child. 2020, c. 25, Sched. 1, s. 2.

[33] Section 24 of the CLRA states:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

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

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

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

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.

[34] This case is troubling.

Parenting restrictions

[35] MA-S, just shy of 10 years old, has never experienced an overnight with the Applicant, independent of the Respondent. For the past two and a half years, MA-S has missed out on the opportunity to have any sort of meaningful relationship with the Applicant and the paternal side of her family.

[36] From the beginning, the Respondent has imposed restrictions on the Applicant’s parenting time.

[37] Although the Respondent testified that the Applicant was never restricted in his parenting time, that is inconsistent with the evidence.

2012 - 2015

[38] The Applicant had regular parenting time with MA-S during this time period. His parenting time, however, was at the Respondent’s apartment unless there was a family function on the Applicant’s side of the family. The Respondent would attend and bring MA-S to any function on the paternal side. The Applicant was not permitted to be alone with MA-S and he was not permitted to bring MA-S to his family functions independent of the Respondent during these first few years.

[39] Although the Respondent desired more than a platonic relationship with the Applicant, at least during this period, everything between them was amicable. The parties went on a trip to Mexico together. It was platonic. The Respondent was present on the trip because she would never have permitted the Applicant to bring MA-S to Mexico on his own.

[40] The Respondent provided emails and text messages during this period that demonstrated that communication between the parties was adequate.

[41] December 26, 2015 is a significant date. The Applicant, Jennifer Borsellino and a friend (Colin) were shopping at the Eaton’s Centre. They bumped into the Respondent and MA-S. The Respondent asked whose girlfriend Jennifer Borsellino was and the Applicant stated his. The Respondent was upset by the revelation. The Respondent and MA-S stormed off.

[42] On December 26, 2015 any good will that existed between the parties was eroded when the Respondent inappropriately overreacted to that news. The Respondent testified that the parties agreed that they would speak to the parent opposite before introducing MA-S to a significant other. Despite the fact that the Applicant accidentally ran into the Respondent and MA-S, the Respondent states that the Applicant broke the agreement and she was angry. Curiously, perhaps hypocritically, the Respondent did not consult the Applicant before introducing MA-S to her boyfriend.

2016

[43] In 2016 the Applicant started to have parenting time with MA-S without the Respondent being present. Parenting time was limited to Sunday visits only. The Respondent permitted no overnights. Despite this, the Applicant would send MA-S to birthday parties and play dates on Sundays thus interfering with the visit. The Respondent testified that she had no control over when play dates or birthday parties were scheduled. The evidence was clear that the Respondent did not prioritize the Applicant’s limited parenting time over random birthday parties and play dates.

[44] The Applicant made efforts to arrange a parenting schedule but the Respondent was never in agreement. As an example, the Applicant sent a proposed parenting agreement in February 2016 that was rejected.

[45] The Applicant asked the Respondent for overnight parenting time with MA-S. The Respondent testified that she refused overnight visits because there was no physical space for MA-S to sleep at the Applicant’s home. The three-bedroom home housed the Applicant, paternal grandmother, and paternal uncle who all had a bedroom. The paternal grandmother’s partner often spent time on the weekends. The Respondent testified that she advised the Applicant when he had his own place, they would discuss overnights. Curiously the Respondent and MA-S spent the night at the Applicant’s home on two occasions. Space limitations were not an issue, it seems, when the two of them were sleeping over.

[46] The Applicant’s relationship with MA-S, though, was very good during this period. They were happy and close. For the Christmas holiday in 2016 the Applicant had parenting time with MA-S for a few hours on December 24, 25, and 26.

[47] However, the Respondent’s emails to the Applicant were a harbinger of things to come particularly when she stated “You can let your gf know I personally think she has no disrespect whatsoever and she is not the type of person our daughter should be near. But then again those are the therapy bills you will have to cover.” This was only the beginning of a series of exchanges where the Respondent referred to the Applicant as ‘sneaky’, ‘disrespectful’, ‘irresponsible’, ‘untrustworthy’, and ‘disappointing.’

2017

[48] By 2017 the Respondent was openly hostile to the Applicant. The Applicant proposed mediation. The Respondent rejected the idea.

[49] The Applicant reached out to Catholic Family Services and Families in Transition for support. The Applicant enrolled in a co-parenting course. Although invited to attend, the Respondent did not participate. The rationale from the text message exchanges, is that the Applicant set it up and asked her to join later and she found that objectionable.

[50] The tone of the text messages in 2017 sent from the Respondent to the Applicant were alarmingly hostile and the frequency, at times, excessive. In February 2017 the Respondent accused the Applicant of physically abusing MA-S. In her text of February 26, 2017 the Respondent indicated that the Applicant and his family were disrespectful by not pronouncing MA-S’s name properly. The Respondent states that MA-S was too fearful to address it and, so, the Respondent wrote:

“Maybe it was the two times you threatened to physically abuse her by grabbing one of her arms and lifting your hand to to (sic) hit her. Only those times you did not go through with it but that does not mean you wont (sic)… a threat can very easily turn into action.”

[51] On March 14, 2017 the Respondent sent a text to the Applicant as follows:

“I don’t even think I can trust you in terms of physical abuse towards our daughter I am actually scared for her safety and well being.”;

“I will make sure to bring up in mediation your threats of physical abuse towards MA-S and myself.”;

“Your mother has also had a history of physically abusing her children which also makes me very uneasy and scared for our daughters safety.”;

“I will also speak with CAS regarding the threats and about the history of physical abuse by yourself and your mother.”;

“Your mother has been pinching or grabbing MA-S by the arm and it has been hurting her but she is too scared to say anything.”

[52] On March 26, 2017 the Respondent sent a text to the Applicant as follows:

“I will also note the new bruises I have found on MA-S after coming home from your visit as possible physical abuse.”;

“I think you need to have yourself checked out as your mental illnesses may be truly getting to you right now.”;

“And yes you do have alcoholism as an additional issue which has cause (sic) you to black out on many occasions and had a concussion because as well (sic)”.;

“I will have mediation and CAS deal with the physical threats, the pinching, pushing and the bruises.”

[53] The Respondent’s allegations of abuse, however, are contradicted by the Respondent’s own statements. On April 6, 2018 the Respondent stated to the CAS worker that the Applicant ‘had never been physical (sic) abusive toward her or MA-S in the past.’ The CAS case note states:

“MA-S and K have stated that M has not been abusive toward them in the past.”;

“K did not identify any concerns regarding father caring for MA-S.”;

“She has never been concerned that he would harm MA-S.”

[54] While the Respondent forcefully and continuously expresses her support of a relationship between MA-S and the Applicant, her actions are at odds with the sentiment. The obstacles to a healthy relationship between the Applicant and MA-S were established by her.

Views and Preferences

[55] Barriers to the Applicant’s parenting time increased until, in 2018, there were no more face-to-face visits between MA-S and the Applicant.

April 1, 2018

[56] April 1, 2018 is a significant date for this family. It was Easter Sunday and the Applicant had MA-S at his home for his parenting time. He also celebrated her recent birthday on this day.

[57] The Applicant, his sister-in-law, and his girlfriend all testified that it was a wonderful day filled with arts and crafts, games, a lunch and a cake. At the end of the visit, MA-S received an LOL doll. She called her mother to ask if she could bring it home as she was not permitted to bring anything from the Applicant to her home. She was permitted. MA-S was dropped off at the Respondent’s home after describing the day as being her best day ever.

[58] On April 2, 2018 the York Children’s Aid Society (hereinafter “YCAS”) commenced an investigation into allegations that the Applicant was physically abusive to MA-S and had limited caregiver skills. The referral came from the Respondent. The date of the alleged incident was April 1, 2018.

[59] Following their investigation, YCAS did not verify limited caregiver skills and found as inconclusive the allegations of physical abuse. MA-S’s story of being aggressively placed into the washroom by the Applicant which was then locked made no sense as there was no lock on the outside of the bathroom door and the participants at the party said that nothing untoward occurred.

[60] Despite this, April 1, 2018 ushered in a new obstacle to the Applicant’s parenting time, MA-S views and preferences. It is noteworthy that MA-S was 6 at the time her views and preferences were used as a shield to prevent parenting time with the Applicant.

[61] On April 18, 2018 the Respondent advised the YCAS worker that MA-S did not see her father the previous Sunday because:

“…it was Greek Orthodox Easter and MA-S has said she does not want to see her father at this time.”

[62] On May 5, 2018 the Respondent wrote:

“MA-S does not want to see you. She is strongly refusing. Unfortunately I can only go by MA-S’s communication. Regardless if you state that her story is not the truth or fabricated. However she does not want to see you. This is her saying this not me.”

[63] On July 5, 2018 the Respondent wrote:

“We will see you this Sunday, and if MA-S chooses to spend the afternoon with you I will of course have the car seat I purchased for travel to and from your location ready and a change of clothes.”

[64] For the balance of 2018, there was limited contact between the Applicant and MA-S. The Applicant had no contact with MA-S from March 2018 until the summer. The Applicant went to a soccer game of MA-S in July 2018 but MA-S refused to spend time with him. The Applicant called MA-S on September 9, 2018 and asked MA-S to go to a park. MA-S said she would think about it. Later, the Applicant received an audio recording from the Respondent in which MA-S said she would not go to the park with him.

[65] The Applicant drove to the Respondent’s home on December 23, 2018 to invite MA-S for Christmas and to give her gifts. On December 26, 2018 the Applicant asked MA-S if she wanted to visit as her cousins were present. MA-S said no but the Applicant then texted the Respondent pleading with her. The Respondent agreed to meet the Applicant at Starbucks with MA-S, although the Respondent remained during the entire visit. Clearly the Respondent had the ability to influence MA-S into attending visits but, by and large, I accept the evidence of the Applicant that she chose to remain silent.

2019

[66] On January 26, 2019 Justice Jarvis made an Order, on consent, appointing the Office of the Child’s Lawyer and ordering parenting time between the Applicant and MA-S be two hours every Sunday.

[67] The first visit, following the Order, was February 17, 2018 and it was a good visit with the Applicant and MA-S walking in the mall for two hours.

[68] Following the February 17, 2018 visit, every Sunday MA-S would attend with a 3rd party and MA-S would stand still in the mall and refuse to interact with the Applicant.

[69] In August 2019 the OCL advised, during the disclosure meeting, that MA-S did not want to interact with the paternal family. It is noteworthy that MA-S disclosed to the OCL clinician that the Applicant never wanted her.

[70] Despite the information received from the OCL, the Applicant continued to attend Richmond Hill every Sunday to attempt visits. MA-S always refused. The Respondent provided no encouragement.

2020

[71] On February 2, 2020 the circumstances changed again. The Applicant drove to the Respondent’s home for his visit. The Respondent was present. MA-S refused to spend time with him. The Applicant attempted to assert his authority but MA-S was adamant and cried. The visit did not take place.

[72] The Respondent, following the visit attempt, contacted the YCAS. Although the Respondent testified that she called only for advice, it resulted in a second YCAS investigation. The Respondent alleged that the Applicant was screaming at MA-S and he pushed MA-S. The YCAS investigation verified that MA-S was exposed to caregiver separation conflicts. The allegation that MA-S was pushed was not verified.

[73] Following the YCAS investigation in February 2020, the Applicant stopped his weekly drive from Toronto to Richmond Hill. He explains: a) MA-S would not see him; and b) he was afraid of another false allegation of abuse. Following the YCAS investigation, the Respondent insisted that all parenting time be supervised.

Information Sharing

[74] Other restrictions imposed by the Respondent included not providing the Applicant with information regarding MA-S.

[75] The Applicant testified about his concern that MA-S was home schooled. He testified that he never agreed to homeschooling. In his email to the Respondent dated October 21, 2021 he asked the Respondent to confirm the curriculum. The Respondent told him to google home schooling curriculum himself. When the Applicant asked why MA-S was being home schooled there was no response. When the Applicant asked if the Respondent was doing the homeschooling with MA-S, there was no answer.

[76] The Applicant expressed concern that MA-S did not have a medical doctor. The Applicant’s email to the Respondent on April 23, 2017 asked about MA-S’s naturopathic doctor. The response was hostile and non-responsive in respect of providing information regarding the naturopath. Rather, the Respondent referred to the Applicant as being a ‘disrespectful belittling abusive man.’

[77] The Applicant, quite correctly, requested information directly from service providers. The Respondent was angry when the Applicant contacted the teacher and on March 31, 2017 wrote to the Applicant:

“As now you have also gone again above me without trying to communicate with me first. Is this your way of communicating? To not even attempt to communicate with me first?”

[78] In respect of health-related information, on April 8, 2017, the Respondent wrote to the Applicant:

“Please make note that I do not give you any permission to take our daughter to a health care provider of your choosing. I also DO NOT give you ANY permission nor consent to take her to ANY health care provider with (sic) my prior knowledge and consent. I hope the above is absolutely clear and does not require any further clarification or discussion. I will not entertain any further discussion regarding (sic).”

Dietary Restrictions

[79] MA-S’s diet was also a point of explosion.

[80] The Respondent testified that MA-S had strep throat in February 2016 and then a vaginal yeast infection (candida). MA-S also had thrush in her mouth. MA-S was put on a restrictive diet to get back to normal levels of yeast. The diet was meant to be short lived. As of the date of trial, there are no dietary restrictions remaining except that sugars are consumed in moderation.

[81] The Applicant states that he was instructed by the Respondent to follow a very strict diet.

[82] The Applicant had parenting time with MA-S for a Thanksgiving visit in 2017. Following the visit, the Applicant states that the Respondent accused him of not following the special diet.

[83] The Applicant states that on one occasion, when dropping off MA-S to the Respondent’s home, MA-S was upset because she could not remember how much water she had to drink. The Applicant assumed she would have to report to her mother and he consoled MA-S. When the Applicant emailed the Respondent about MA-S crying because she was afraid to go home, the Respondent did not believe him and replied:

“Just to clarify, our daughter does not lie nor does she make up stories. You unfortunately have pathological tendencies and a long track record of countless lies.”

Defective Car Seat

[84] The Respondent added another obstacle to the Applicant’s parenting time, the allegedly defective car seat.

[85] The Applicant testified that the Respondent insisted that his car had been in an accident and that the car seat he had been using would need to be replaced. Despite assurances, including the Applicant obtaining a report that the car seat was fine, the Respondent insisted that the car seat was compromised and they would need to use her car seat.

Alienation

[86] With this backdrop it is not surprising that, in her interim report, Ms. Gardner expressed concerns about the ‘marginalization’ of the Applicant in MA-S’s life and strongly encouraged the Respondent to seek out assistance to allow her to understand the value of MA-S having a relationship with both parents as well as extended family members.

[87] In her interim report Ms. Gardner reports MA-S as saying:

“There is nothing good about her father”;

“She is sad that her father did not want a family and did not want her.”;

“Her mother told her that her father did not want a family.”;

“Everyone in her family loved her except her father, who she calls ‘Daddy M’; and

“MA-S states that her mother does not like her father.”

[88] In her interim report Ms. Gardner noted:

“There is urgency for a therapeutic intervention in this matter to address the break in child-parent contact. The therapist would need to have the skills to address the many facets of the situation, as well as the skills to implement an access strategy such as: Understanding Child-parent contact problems, factors contributing to and sustaining parent-child contact problems, and continuum of child-parent problems and impact of loss of parent relationship.”

“It is important for each party to commit to the therapeutic process as there is concern about participation given nothing has moved forward to date. Therapeutic access should be a priority for Mr. S and Ms. A and they should not delay attending meetings or sessions.”

[89] In her interim report Ms. Gardner noted:

“It is alarming when a child articulates that it is her choice whether or not to see a parent.”

[90] In terms of recommendations the interim report states:

“It is recommended that Ms. A attend individual therapy/coaching to assist her in developing a healthier, disengaged/parallel, co-parenting relationship with Mr. S.”

“It is recommended that Mr. S. engage in therapy/coaching to assist him in developing a healthier, disengaged, co-parenting relationship with Ms. A.”

[91] Ms. Gardner recommended therapeutic reunification intervention and recommended one of three therapists: Diana Polak, Ricardo Theoduloz or Joanna Seidel.

[92] In her final report dated September 24, 2020, Ms. Gardner noted that MA-S had no contact with the Applicant. Therapeutic reunification therapy never commenced because the Respondent stated she did not have the financial means and the Applicant was not able to cover the cost independently.

[93] In her final report, Ms. Gardner states:

“There remains an urgency for a therapeutic intervention for all family members to address the parent-child rejection. It is concerning that the therapeutic recommendations made by the OCL in the previous report have not been followed. The delay and the passage of time are obstacles in ameliorating the resist-refuse dynamic. MA-S’s attitudes are becoming increasingly entrenched as they remain unaddressed over time with no contact with Mr. S. The unjustified parent-child contact problems will require various combinations of all family member’s participation in an intervention. The clinical intervention may need to encourage Ms. A to support a relationship between MA-S and Mr. S while at the same time requiring Mr. S to change behaviours.”

[94] In terms of recommendations, Ms. Gardner made four broad recommendations:

(a) that MA-S remain in the sole custody (now decision-making) and primary care of the Respondent;

(b) that access (now parenting time) between the Applicant and MA-S occur every Sunday with further contact as recommended by the therapist;

(c) that communication between the parties occur by Our Family Wizard; and

(d) that both parties engage in a therapeutic reunification process to address the resist-refuse dynamics in the new family. It was recommended that each party attend individual therapy/coaching and that MA-S obtain counselling (as recommended by the CAS in 2020).

[95] When asked if she had concerns regarding alienation, Ms. Gardner stated that the Respondent’s actions lead her to conclude that the Applicant is being marginalized. She further testified that many of Dr. Fidler’s behaviours indicative of parental alienation were present in both the actions of the child and the actions of the Respondent.

[96] In terms of an alienating parent’s behaviours, I conclude from the evidence, and Ms. Gardner agreed, that the Respondent engaged in the following behaviours on Dr. Fidler’s list of behaviours indicative of parental alienation:

(a) permitting MA-S to make decisions about contact with the Applicant;

(b) refusal to hear positive comments about the Applicant;

(c) refusing to speak directly to the Applicant;

(d) discouraging the Applicant from attending school events and activities;

(e) treating gifts from the Applicant to MA-S in a negative light;

(f) portrayal of the Applicant as dangerous; and

(g) observing that there were no photos of the Applicant on display in the Respondent’s home.

[97] In terms of an alienated child’s behaviours, I conclude from the evidence, and Ms. Gardner agreed, that MA-S’s behaviours, taken from Dr. Fidler’s list of behaviours indicative of an alienated child, include:

(a) MA-S views the Respondent as all good and the Applicant as all bad;

(b) MA-S has, to some degree, vilified the Applicant;

(c) MA-S’s justification of her hatred of the Applicant is trivial, false or irrational;

(d) MA-S talks openly to extended family members about the Applicant’s shortcomings;

(e) MA-S experiences no guilt or ambivalence over her treatment of the Applicant;

(f) MA-S has a stronger bond with the Respondent;

(g) MA-S has exhibited anger directed at the Applicant because he did not want her;

(h) some of MA-S’s stories lack detail; and

(i) MA-S has no desire for reconciliation.

Reunification Counselling

[98] In terms of counselling, the Respondent was uncooperative. The Applicant contacted Linda Popielarczyk in April 2019, as she was considered an expert in reunification therapy. When asked, the Respondent would not permit MA-S to participate in reunification therapy with Ms. Popielarczyk.

[99] In September 2019 the OCL interim report recommended reunification therapy and that the process commence by end of September 2019. Three therapists were recommended: Diana Polak, Ricardo Theoduloz and Joanna Seidel.

[100] The Applicant submitted an intake form for Diana Polak right away. The Applicant paid 1/3 of the retainer. The Applicant had his first appointment on October 22, 2019.

[101] The Applicant testified that the Respondent refused to pay her 1/3rd share. As a result, the Applicant proposed to pay the full retainer and deduct the Respondent’s share from child support. The Respondent refused.

[102] The Applicant offered to pay for all of the sessions except for the Respondent’s attendances and the Respondent said no.

[103] On October 28, 2019 the Respondent’s counsel wrote:

“I am writing at this time to advise you that my client is currently unemployed and as a result, she is not able financially to contribute towards the cost of the reunification therapy at this time.”

[104] The September 24, 2020 OCL final report again recommended reunification therapy. Individual counselling was recommended for MA-S, the Applicant and the Respondent.

[105] On January 26, 2021 Justice Jarvis made an Order that the parties engage in reunification therapy with Ms. Lowenstein and Ms. Kavoukian. In terms of the cost, the Respondent was ordered to pay for her own individual therapy as well as 50% of the costs of any joint sessions. If the Respondent failed to pay her share, Justice Jarvis ordered that the cost be deducted from the child support payable and for the cost to be covered by the Applicant. The Applicant attended five individual sessions with Ms. Kavoukian. The Respondent attended two individual sessions. There were three joint sessions. In June 2021 the Respondent refused to attend further joint sessions stating that she was verbally abused by the Applicant so she cannot be in joint sessions with him. She also alleged that the closed therapy session agreement was breached when the progress was addressed in court. Therapy stopped.

[106] The Applicant testified that he has now arranged for reunification therapy to commence with Ms. Polak if MA-S is placed in his care. He also testified that it is not closed reunification (as the previous one was) and he would like that to commence immediately.

[107] The Respondent testified that she would agree to reunification therapy but requested that it be closed therapy. The previous closed therapy reunification therapy, she states, was breached by the Applicant, the therapist and by both counsel.

[108] The Respondent states that she contacted Families in Transition and she had two individual sessions. The Respondent states that she is still doing counselling. The focus on the therapy, however, is on improving communication.

[109] In terms of counselling for MA-S, the Respondent testified that she proposed play therapy but her emails were ignored by the Applicant. In terms of reunification therapy, she testified that it was simply not within her financial means.

[110] As stated, the Respondent testified that she was in agreement with reunification therapy as long as it was closed therapy. I cannot accept the Respondent’s testimony. Reunification therapy was recommended by the OCL in 2019 and 2020 and it was ordered by Justice Jarvis in 2021. It is the end of 2021 and it has still not happened. The OCL also recommended the Respondent seek out assistance to allow her to understand the value of MA-S having a relationship with both parents. She did not do so.

[111] Although the Respondent testified that she could not afford reunification therapy, she continued to enrol MA-S in various section 7 expenses. One such expense was swimming. The cost of swimming was very high because swimming classes were only offered on a one on one basis during Covid. The cost for eight lessons was $720 with the lessons running from July 7 – August 25, 2020. On January 6, 2020 the Applicant proposed that therapy be prioritized over swimming. The Respondent’s response to the suggestions was:

“As stated in my counsel’s communication you will have to cover the cost of therapy. Once I have gained full time employment I would then contribute my proportionate amount based on our respective incomes.”

[112] Although there has been no face-to-face contact between the Applicant and MA-S in a very long time, there are video chats three times a week. They are not great.

MA-S’s Knowledge of Court

[113] In addition to being permitted to make decisions regarding her parenting time with the Applicant, MA-S has obviously been exposed to the court process. MA-S has asked the Applicant why they are still in court. Recently she advised the Applicant that she does not want to live with him. MA-S stated that she could not go to Glee club because the Applicant would not pay for it. The Respondent testified that she explained court to MA-S in an age appropriate manner. MA-S is 9.

[114] The Respondent testified that she supports a relationship between MA-S and the Applicant and the maternal grandmother. The evidence contradicts that statement. In respect of the paternal grandmother, the Respondent, on July 20, 2016, emailed the Applicant following her receipt of an email from the paternal grandmother stating:

“Please if you can ensure that I no longer receive communications like below. As per our conversations and agreements, communications regarding MA-S will be limited to the two of us and no other third party.”

[115] Since 2018 the Respondent has not initiated a single visit with the father, the paternal aunt, or the paternal grandmother.

[116] The Applicant testified that he could not send gifts to MA-S and, when he did, they were changed or exchanged. The Respondent stated she only did so because the gifts were incorrect sizes.

Other

[117] During the trial there were many instances the Respondent was evasive in providing information. A simple question, such as the number of employers she has had since 2018 (there were two), was not easily answered.

[118] Requests for Information were not properly answered. As an example, requests for details of the incidents of April 1, 2018 and February 2, 2020 were answered with ‘see CAS records.’

[119] There were no answers provided following receipt of the Request for Information regarding therapeutic therapy because, the Respondent testified, it was closed therapy.

[120] During cross-examination the Respondent had to be warned to stop continually changing her answers to questions.

[121] When asked to list all health care providers in the Request for Information, Dr. Clare Meranda was not listed. Dr. Clare Meranda, the Respondent’s medical doctor, was not a collateral that the OCL spoke to as a result of not being given the information. In testimony the Respondent stated that MA-S was also a patient of Dr. Clare Meranda although this information had not been disclosed in response to the Request for Information.

[122] The Applicant proposes the Respondent have supervised visits if MA-S is placed in his care. He testified that he would ensure that MA-S has a family doctor and is enrolled in in-person education at either Saint John Bosco or Holy Rosary School. He will ensure reunification counselling occurs and has arranged same with Dr. Polak.

[123] The Respondent accepts no responsibility for the breakdown in the relationship between the Applicant and MA-S.

[124] The Respondent states that MA-S should remain living with her because:

(a) MA-S has always been with her;

(b) MA-S is provided structure and routine;

(c) MA-S is provided love and emotional support; and

(d) the Respondent brought MA-S to all of her doctor and dentist appointments and brought her to all of her extra curricular activities.

[125] The Court in A.G.L. v. K.B.D. [^1] stated at paragraphs 97 and 98:

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

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

[126] In Bors v. Beleuta,[^2], Van Melle J. approved of the following definition of parental alienation described by Dr. Michael Stambrook in the Manitoba case of L.M.A.M. v. C.P.M.[^3]

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…

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.

[127] Ms. Gardner testified that the Respondent’s actions lead her to conclude that the Applicant is being marginalized. It is puzzling why the OCL recommended sole decision-making to the Respondent for the following reasons:

a) in 2020 there was almost no contact between the Applicant and MA-S;

b) the Respondent did not follow the OCL recommendation that she obtain counselling to understand the importance of the Applicant in the Respondent’s life;

c) although therapeutic intervention was ‘urgent’ in her interim report in 2019 and it ‘remained urgent’ in her final report in 2020, the reunification did not occur because of the Respondent;

d) the applicant participated in many behaviours linked to alienation; and

e) MA-S demonstrated many behaviours of an alienated child.

[128] It is noteworthy that the OCL reports are dated. However, the reunification recommendations that were determined ‘urgent’ in 2019 and 2020 were tried and sabotaged by the Respondent. Alienation is abuse. The recommendation that MA-S remain in the care of the Respondent is inconsistent with her best interests. Accordingly, I have chosen not to follow the recommendations of the OCL. As stated in Knapp and Knapp,[^4] at paragraph 20:

“A trial judge is not required to accept the OCL recommendations. They are just that: recommendations.”

[129] Based on all of the evidence, I conclude that the Respondent has alienated MA-S from the Applicant by engaging in a process which unnecessarily limited, restricted, devalued, criticized and minimized the role of the Applicant in MA-S’s life. I further conclude that the Respondent has no insight into her alienating behaviours.

[130] The Ontario Court of Appeal in A.M. v C.H.,[^5] affirmed the four possible alternatives available in cases of alienation:

1. Do nothing and leave the child with the favoured parent;

2. Reverse decision-making and primary residence and place the child with the rejected parent;

3. Leave the child with the favoured parent and order therapy and counselling; or;

4. Provide a neutral, transitional placement for the child and order therapy, so as to facilitate a placement with the rejected parent at a later date.

[131] The first alternative is not in MA-S’s best interest. It will result in a continuation of the status quo which is one where MA-S has little to no relationship with the Applicant and the paternal side of her family. MA-S is entitled to have a relationship with the Applicant and the paternal side of the family.

[132] The third alternative is not in MA-S’s best interest. It was tried and it has failed. In 2019 and 2021 the OCL recommended reunification therapy. The OCL used language in 2019: ‘There is urgency for a therapeutic intervention in this matter…’; and in 2020 ‘There remains an urgency for a therapeutic intervention for all family members to address the parent-child rejection.’ Despite this, reunification did not commence until 2021 when the court ordered reunification therapy. Reunification therapy started and was then stopped by the Respondent. Despite the Respondent’s indication that she is agreeable to reunification therapy, she did not do so despite the urgency identified by the OCL and she terminated it when it commenced. Currently the Respondent prefers a reunification process that is closed therapy. Sadly, that would result in a process where the Respondent is not accountable.

[133] The fourth alternative is not an option. While the YCAS has been involved, they have not commenced a protection application. Neither the Applicant nor the Respondent proposed a neutral placement that would facilitate therapy.

[134] Accordingly, the only alternative remaining, and the alternative that is in MA-S’s best interest, is providing the Applicant with sole decision-making authority and to have MA-S reside primarily in the Applicant’s care.

[135] This is going to be a very difficult decision for MA-S, at least in the short term. The Court has confidence that the Applicant will facilitate and encourage a healthy relationship between the Respondent and MA-S. The Applicant will ensure that reunification therapy occurs. He has already retained Dr. Polak.

[136] Despite the names that he has been called, the two child protection investigations he endured, and the lack of parenting time with MA-S who refuses to see him, the Applicant maintained a calm demeanor throughout and explored available options to deal with the situation. He continued to reach out to MA-S demonstrating patience and a commitment to MA-S.

[137] The Applicant has an appropriate home for MA-S and has an appropriate plan for MA-S’s care that includes in-person schooling and a pediatrician.

[138] It is desirous to have a parent that acts as a cheerleaders for the parent opposite. While it is desirous, it is not the expectation of the Court. Alienation of a child, however, cannot be condoned. When I consider the provisions of section 24 of the CLRA, particularly 24 (3) (c) , (h) and (i), I conclude that it is in the best interests of MA-S to be placed in the care of the Applicant.

[139] What parenting time should be provided to the Respondent? This is a difficult question and there was no expert evidence provided to the Court to assist.

[140] I note that the Respondent is not an evil person. She is, to the contrary, a very engaging and likeable individual. The Respondent loves MA-S and would do anything for her. However, the Respondent has been unable to separate her feelings of anger and rejection by the Applicant from MA-S’s entitlement to have a relationship with the Applicant. The Respondent, currently, has no insight into how her actions have negatively impacted MA-S and the relationship MA-S has with the Applicant. In 2019 the OCL ‘strongly recommended’ the Applicant seek out assistance to understand the value of MA-S having a relationship with the Applicant. She has not done so. The Court is hopeful that through counselling and the reunification therapeutic process that the Respondent will begin to gain an understanding of her role in the alienation process. I believe that she can and I believe that she will. However, that is to be determined. For these reasons, however, I am not finalizing the Respondent’s parenting time today. I am making an Order for reunification and will finalize the Respondent’s parenting time 6 months hence.

[141] I have elected not to include a police enforcement clause in this order. The Court expects the Respondent to assist MA-S in this transition and to make it as seamless as possible. If there are any issues with the transition, the Applicant may file an urgent 14 B motion, without notice, to my attention on December 6, 2021 and a police enforcement clause will be granted.

Analysis - Child Support and Section 7 Expenses

[142] The starting point for determining the amount of child support under the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) is section 3, which established the following presumptive rule respecting the amount of child support:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).

[143] Section 19(1) of the Guidelines states:

Imputing income

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[144] In terms of child support, the Respondent earned $26,978 in 2020. Although her income in 2021 is likely to be lower, she has only worked part-time. There was no evidence presented to the court to suggest that the Respondent could not, at least, work full-time and earn (at least) minimum wage based on full-time employment, which would be slightly higher than the income she earned in 2020. Accordingly, I impute income to the Respondent in the amount of $26,978, consistent with what she earned in 2020.

[145] Section 7.1 of the Federal Child Support Guidelines, SOR/97-175 under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), states:

Special or extraordinary expenses

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[146] Section 7 expenses for MA-S shall be shared by the parties proportionately in accordance with their incomes.

[147] The Applicant, in 2020, earned $105,170.

[148] As stated, I impute income to the Respondent in the amount of $26,978.

[149] Accordingly, section 7 expenses shall be shared as follows: the Applicant shall pay 80% and the Respondent shall pay 20%.

Final Order

1. Pursuant to the CLRA, the Applicant shall have exclusive authority over major decision-making for MA-S in the areas of religion, health, school, and extra curricular activities.

2. The Applicant shall immediately arrange for reunification therapy to occur between the Applicant, Respondent and MA-S. The Applicant shall pay the full cost of the reunification therapy, which is a section 7 expense, and the Respondent shall contribute to her proportionate share of the cost as is set out below. The Applicant shall provide a copy of this decision to the reunification therapist.

3. The Respondent shall obtain counselling to understand the value of MA-S having a relationship with the Applicant. The Respondent shall provide a copy of this decision to her counsellor.

4. MA-S shall reside with the Applicant primarily, subject to the Respondent’s parenting time.

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

6. The Respondent shall not disparage the Applicant in any way in front of MA-S nor shall she permit anyone else to speak to MA-S about the Applicant in a disparaging way.

7. Commencing December 1, 2021 and on the first of every month thereafter, the Respondent shall pay to the Applicant $222 in monthly child support for MA-S based on her 2020 income of $26,978.

8. Section 7 expenses for MA-S shall be shared by the parties proportionately in accordance with their incomes. The Applicant shall pay 80% of section 7 expenses ($105,170) and the Respondent shall pay 20% of section 7 expenses ($26,978).

9. SDO to issue.

Temporary Order

10. From the release of this decision, until December 24, 2021, there shall be no face-to-face contact between MA-S and the Respondent. During this period, MA-S shall have Facetime (or other suitable and agreeable electronic App) with the Respondent, supervised by the Applicant, on Tuesdays, Thursdays and Saturdays at 6:00 p.m. for no longer than one hour.

11. From December 24, 2021 until there is a further court order, face-to-face parenting time shall be at the discretion of the Applicant in consultation with the reunification therapist.

12. The parties shall return to court on April 14, 2022 at 2:00 p.m. for a Trial Management Conference before Justice Himel on the sole issue of the Respondent’s parenting time. The reunification therapist is requested to attend. If the parties are able to agree on parenting time between the Respondent and MA-S, a final Order can be made. If the parties are not able to agree on parenting time between the Respondent and MA-S, the issue will proceed to a continuation of the trial on that issue alone, before me, for 1 day, on May 16, 2022 at 9:30 a.m.

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

Justice G.A. MacPherson

Date: December 3, 2021

[^1]: 2009 CanLII 943 (ON SC), 2009 93 O.R. (3d) 409 [^2]: 2019 ONSC 7029 at para. 119. [^3]: 2011 MBQB 46. [^4]: 2021 ONCA 305 [^5]: 2019 ONCA 764