BARRIE COURT FILE NO.: FC-12-1007-01

DATE: 2021-02-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Melanie Bevan (Varcoe), Applicant

– and –

Christopher Varcoe, Respondent

Counsel: Applicant – Self-represented K. Normandin and J. Adair, Counsel for the Respondent

HEARD: In chambers

ENDORSEMENT Withdrawing from Case

(One Tin Soldier Rides Away)

Bennett J.

[1] This court is writing an Endorsement with respect to its decision to withdraw from this case and to ask that the Case Management Judge and motions judge’s temporary roles be made permanent in accordance with one of the options set out by the Divisional Court. This court had seized itself of this matter following a trial which was completed in June 2017.

[2] The court however believes that it would be doing a disservice to the parties, their children and the administration of justice to simply withdraw from this case without providing its rationale for so doing.

Background

[3] It is important that any decision be put in context.

The 2017 Trial

[4] This court presided over a 14 day trial in May and June 2017.

[5] At that time, the parties were each represented by counsel, and there is certainly no question that the respondent’s then counsel was quite capably representing him.

[6] This court heard evidence from not only the parties but from professionals who had been then involved with this family, some since shortly after the separation.

[7] The court would ask that anyone having to address this case in future or working in a capacity of assisting this family read that 189 page decision to get a proper context of the then situation.

[8] At the time of the trial, the children were 10, 12 and about to turn 14 years of age. The court found that as of that time, they had been subjected to the escalating alienating behaviour of the respondent father and his partner for the almost six years since the date of separation. ( the children are now 17, 15 and 13 years of age)

[9] At the time of trial, this court found that (as a result of Orders for police enforcement) the children were spending roughly equal amounts of time with each parent, however, the situation between the children (particularly the eldest)and their mother was in a word - abhorrent.

[10] The children, (to a lesser extent the youngest child) were treating their mother with such disrespect that, quite candidly, it was deeply disturbing to read about it and to hear evidence of it. The mother was being assaulted, called the most vile of names, and totally disrespected. She had her privacy totally violated by her daughter who was as the court found essentially “working” on behalf of the respondent father and his partner. The children had no respect for the extended maternal family and had made false accusations about the maternal grandfather “assaulting” one of the children. The children were acting in a totally irrational manner, such as the two boys jumping out of a moving car in order to not spend time with a friend of their mother who was someone against whom they had no rational basis for reacting in this matter.

[11] Each party was seeking to vary the consent Order they had entered into in 2013 which had been done on the eve of a trial.

[12] The applicant was seeking a finding of parental alienation and asking that she be granted sole custody of the three children and that access by the respondent father be suspended for at least three months and that the family should engage in therapy.

[13] The respondent was seeking an Order that he be granted primary residence of all three children and that the mother have alternate weekend access.

[14] The court found that if his submissions had been accepted and the court had made the Order he was requesting, it would effectively have resulted in the children living with him and in all likelihood not visiting with the applicant at all except perhaps sporadically.

[15] The court indicated in its decision that it was attempting to craft a decision which the court described as perhaps delusional or blinded by eternal optimism. The objective of the trial decision was to change the respondent father’s mentality from one of “war” and “destroying” the applicant mother to one in which his objective would be to have an environment pursuant to which the children could be free to love both parents and freely move back and forth between them willingly, happily and without the need for intervention of any of the resources that the family had utilized to that point in time. The further objective of course was to get the children help so that they could have a healthy relationship with their mother.

[16] The court found that:

“in a sentence, it is hard to imagine how one party, and in this case the respondent, could deliberately breach each one of those provisions (of the consent Order of Justice Corkery of November 15, 2013) and to attempt to offer to the court what he presumably felt were “reasonable explanations” as to his actions and to take the position that his actions were not in breach of those provisions.”

[17] The court found that the alienation by the respondent father commenced virtually immediately at the time of separation. The applicant had suggested to him that they should speak to a therapist as to how to tell the children that they were separating. The respondent was unwilling to do so and during the meeting that they had with the children to tell them about the separation, the respondent cried the whole time making it obvious that it was her decision to separate and not his. He then refused to leave the matrimonial home. Both of these actions were indicia of the commencement of manipulation and alienation.

[18] Each of the parties testified at length at the trial.

[19] The court found the respondent’s description of the children totally ironic in that he went to great lengths to indicate how polite, mature and empathetic the children were. Yet, he not only condoned, but promoted their abhorrent behaviour towards their mother.

[20] In the trial decision, the court cited in detail countless indicia of this alienation which included:

(a) the children mirroring behaviour that the father had exhibited prior to the separation such as opening a car door and attempting to jump out while the car was moving while he was arguing with the applicant mother. In addition, the children heard some of the vile language used by the respondent father in the presence of the children towards the applicant mother. They subsequently utilized similar vile language with their mother;

(b) portraying the listing of the matrimonial home in a way to turn the children against the mother;

(c) persuading the children that they should not engage in skiing with the applicant mother, something that was important to her and that the children enjoyed doing with her prior to the respondent’s intervention;

(d) engaging and promoting the children in telephone contact with him multiple times each morning and late each evening while the children were spending time with their mother, in an obvious attempt to undermine the children’s relationship with their mother;

(e) actively promoting the theory that by the time children reach the age of 12, they should be free to determine with which parent they should reside with in order to bring his alienation into fruition;

(f) condoning and perhaps encouraging the children in “running away from” their mother’s residence to return to his residence;

(g) using the children’s sports equipment as another “tool” to promote the children’s dissatisfaction with their mother and alienation;

(h) between he and his partner Christine Allenby, attempting to utilize the children and particularly the eldest child to, for example, steal the Separation Agreement from her mother in a thinly veiled attempt to try to induce the mother to physically interact with the child presumably so that a charge could be laid against her. In another instance having the children deliberately spend inordinate amounts of time in his home while supposedly there only to pick up sporting equipment in an attempt to induce the mother to come into his home so that charges could be laid against her (in contravention of a no trespassing Order that he had made against her);

(i) encouraging the children to videotape their mother after instigating a conflict with her and then attempting to utilize that video which the children provided to him in order to try to have the applicant mother charged;

(j) not only condoning, but encouraging the eldest child when she “fortuitously” was intercepting her mother’s private communication, to not only continue to intercept that communication but to give the “evidence” to the respondent father and his partner so that it could be used against the mother. At the same time as he was doing this, the respondent was asking the Children’s Aid Society not to disclose to the mother that he was receiving this information. This was presumably done so the child could continue to be utilized to gather further “evidence”;

(k) encouraging the children to attempt to have charges laid against their mother for theft if she tried to take away their cell phones or iPods as a form of discipline;

(l) as this court indicated in its decision, perhaps one of the most “creative” methods that the respondent father and his partner used to try to alienate the children was not only taking away an exciting time for the eldest child who was then 12 to attend a Taylor Swift concert with her mother and friends, but purchasing tickets for that very concert so that either he or his partner could take the child to the concert and deprive the mother and child of time together which they had enjoyed on previous birthdays in such situations; and

(m) taking the position that when the mother, due to technical difficulties, was 12 hours late in February of one year providing the respondent father with her selection of vacation time in August of that year was because she was “in contravention of the agreement” and her vacation time should be denied.

[21] This court found that the actions by the respondent father and his partner, resulted in the most severe of alienating behaviours that could possibly be imagined.

[22] In addition to the witnesses that the court heard, the court read all of the exhibits filed in that action which totalled well in excess of 1000 pages. Those exhibits included police reports, CAS reports, therapist reports, and other professionals’ reports.

[23] All of the evidence heard is detailed in this court’s 189 page decision that was rendered within 21 days of the conclusion of the trial.

[24] This court concluded that there had been severe alienation of the children by their father, the respondent against their mother.

[25] During the trial, on consent the court heard testimony from Howard Hurwitz who had prepared a custody access assessment report for the parties shortly after their separation in 2011.

[26] The evidence from Mr. Hurwitz was not related to his custody access assessment report which this court found of course was outdated but, on consent of counsel, Mr. Hurwitz was found to be an expert in parental alienation and gave generic evidence with respect to parental alienation.

[27] As detailed in this court’s trial decision, this court concluded that it was in some ways as if the respondent father had read Mr. Hurwitz’s books on alienation and had used them as a “how to” manual with respect to alienating his children from their mother.

[28] At the end of the trial, and in its decision, this court not only concluded that there had been severe alienation but concluded that there should be a period of non-contact, reintegration therapy between the children and their mother and that the respondent father should engage in therapy to address his severe alienation.

[29] The court ordered that the mother and children participate in an intensive workshop of four days duration. They did in fact participate in that workshop through Family Bridges.

[30] The proof of success of that workshop was evidenced immediately in the reports received not only from the applicant mother but also from Family Bridges. The children, in four days, basically did a “180” and virtually immediately transformed their relationship with their mother, their extended maternal family and their mother’s friends.

[31] Another portion of the therapy ordered by this court was that the respondent father was to engage in therapy with Family Bridges through their program designed to assist the “favoured parent” in understanding their alienating behaviours and in modifying their behaviour so that the past actions were not repeated in the future and so that the children could have a healthy relationship with both parents.

[32] As part of this court’s 189 page decision, the court ordered that there be no contact between the respondent father and members of his family until reports had been received that he had participated in and was changed as a result of the therapy that he was to receive. There was a minimum of 90 days with no contact imposed between the respondent father and his family and the children.

[33] In order to ensure that all extended family members understood the court’s decision and that they heard it from the court rather than second or third hand, the court suggested to the parties that their extended family be asked to attend at the court appearance when the court read approximately the final 20 pages of its decision.

[34] After reading its decision, the court looked directly at the respondent father and suggested that in the court’s view there were really three options available to him:

(a) he could speak to his counsel about seeking leave to appeal the temporary Order made by the court;

(b) he could “go through the motions” and pretend that he was doing what the court asked but not really intending to change and simply doing what was required so that he could resume contact with his children or;

(c) he could look himself in the mirror and decide that perhaps the court was correct and that he needed to genuinely change in which case he could avail himself of the Family Bridges program to initiate that change.

[35] As part of its decision, the court remained seized of this case.

[36] In order to provide context, to where we are today, the court believes that a summary of its intervening Orders is necessary to provide that context.

[37] This court has rendered approximately 40 Endorsements in this file. The following represents the dates of those Endorsements and a synopsis with respect to the same:

(a) the first Endorsement was rendered immediately following the hearing of the last witness at the trial and was an Order setting out how the parties ( and in particular the respondent father and the oldest child) would behave with respect to the eldest child’s grade 8 graduation to be held June 27, 2017. The graduation was to take place the day before the court was to render its trial decision. That Endorsement resulted in the day being a very memorable one for the child rather than a complete disaster which the court had no doubt would have occurred without this court’s intervention, given the behaviour of the respondent father and his partner at that time;

(b) the court rendered on June 28, 2017 a 189 page decision earlier referred to which the court delivered 21 days following the trial;

(c) on October 2, 2017 (approximately 90 days after the non-contact Order had been made) the respondent father had brought a motion seeking to have his equal time with the children resume. This Endorsement sought a report from Family Bridges as to the respondent father’s progress and the situation with respect to the applicant mother and the children;

(d) on October 4, 2017 the court issued a seven page Endorsement after hearing that motion, the essence of that Endorsement was that both the parties and the court had questions for Family Bridges and the court noted that there were positive signs in the report from Family Bridges. As a result of the intensive workshop over four days immediately following the court’s decision, the children and the applicant mother had done a “180.” The court further noted that the respondent father had just begun his aftercare program with Family Bridges and that there was evidence of progress in that regard as well. The matter was adjourned for a few weeks to October 25, 2017 for an update particularly with respect to the father’s education and hopeful continued progress;

(e) on October 19, 2017 the court issued a short Endorsement with respect to progress to that point in time;

(f) on October 24, 2017, the court granted the respondent’s request for an adjournment of the return of the motion scheduled for the next day and proposed an adjournment date of November 28, 2017 again, requesting an update from Family Bridges;

(g) on December 7, 2017 the court rendered a 31 page Endorsement. By that time, Family Bridges had provided an update of its report. The respondent father was seeking an Order that Family Bridges should no longer be involved, that there was no need for any continued therapeutic assistance and that the court “take charge” of the situation including being very involved in a hands on way with the children. In the alternative, he proposed that Dr. Butkowsky be ordered to replace Family Bridges. Even though he had very experienced counsel, there was nothing put forward to the court from Dr. Butkowsky to indicate his willingness to take on this role, the cost thereof, his availability or that he had even been contacted with respect to this proposal. For reasons detailed in that Endorsement, the court found that Family Bridges should not be removed. At the conclusion of that motion, (which will be referred to subsequently) his counsel, the respondent father himself and his partner, Christine Allenby herself, committed to their continued involvement with Family Bridges;

(h) in addition to that Endorsement, an Endorsement dated December 19, 2017 was issued which Endorsement had been drafted and circulated to counsel for their input. The purpose of that Endorsement was to share the same with Family Bridges without Family Bridges being alerted to the December 7 Endorsement and the position taken by the respondent father at the motion. This was done in an effort by the court to ensure that Family Bridges could continue to act in a neutral capacity not jaundiced by the respondent’s position. As well, Family Bridges made it clear that they would only be involved if the alienating party accepted that therapy and healing was needed and not further litigious action;

(i) on February 14, 2018 the court issued an Endorsement sharing information that it had received from Family Bridges and separately from the applicant which alerted the court that, contrary to the representations made by the respondent father in December (which the respondent knew had been communicated to the children), he had not resumed contact with Family Bridges. The court in fact issued two Endorsements on that day;

(j) on February 26, 2018, the court issued a 29 page Endorsement. The respondent father was objecting to continuing with Family Bridges for among other reasons, the cost thereof (even though he had spent according to him $365,000 in legal fees to that point in time). One of the purposes of this court’s Endorsement was to seek some clarification from Family Bridges as to their invoicing. The court was seeking to determine if Family Bridges would be willing to reduce their future costs in order to ensure that their fees were not a rationale for the respondent not continuing;

(k) the court conveyed to the Respondent how concerned it was about the children’s frustration with a lack of progress and that they were entitled to an explanation of the delays. The court then indicated that the respondent father should either continue with Family Bridges setting out what he needed to do if that was the case, or by March 30 (approximately one month later) if the respondent father was not going to continue with therapy, the court would simply render a final decision;

(l) on March 20, 2018, the court issued an Endorsement relaying a letter that it had received from Family Bridges in response to its February 26 Endorsement in which they were prepared to make concessions regarding fees in order to have this family continue with the program. The court indicated that by April 3, 2018, the respondent father should provide his position;

(m) on April 5, 2018 the court issued an Endorsement granting the respondent father’s request for an extension of the deadline to April 13;

(n) on April 26, 2018, the court issued a further Endorsement granting the respondent father’s additional request for an extension of time. Once again, if the respondent father was not going to continue with therapy, the court indicated it would be proceeding with a final decision and gave the respondent father time to prepare submissions;

(o) on April 30, 2018, the court issued an Endorsement having received the respondent father’s submissions which included two affidavits from him and an affidavit from his partner Christine Allenby. The court noted that the respondent father used 99% of his submissions in an attempt to convince the court that Family Bridges was wrong and that he was justified in not wanting to continue with them (in essence, his argument was similar to that made by his counsel in the December 2017 motion). The court as well noted that in his material and that of Ms. Allenby, it was disclosed that contrary to public policy and explicitly contrary to the agreement that the respondent father entered into with Family Bridges, Ms. Allenby began recording surreptitiously her involvement with the respondent father’s involvement with Family Bridges commencing with the first meeting that she had with them. The court noted that this clandestine and surreptitious behaviour is consistent with the historical pattern that the court had heard during the trial. The court found that the respondent father (and his partner’s actions) were totally inconsistent with his professed love for his children and claim that he was “desperate to get back to his children.” The court noted that his actions and those of Ms. Allenby were totally contrary and dishonest with respect to his representations and those made by Ms. Allenby to the court on December 7, 2017 wherein they represented that they were prepared, given the court’s decision, to work with Family Bridges. This court found that that any progress that the respondent father had been making until October 2017 ceased in November 2017 when his partner began “evidence gathering” by surreptitiously recording Family Bridges. The court ordered the respondent father to provide financial disclosure so that the court could move forward with its final decision;

(p) the parties next appeared before the court May 30, 2018. At that time, the court read a 39 page draft of a final decision that the court proposed to render if the respondent father was not prepared to seek out another therapist and to apologize to the children for the then six month delay which had occurred as a result of his misrepresentation in December 2017 of agreeing to continue with Family Bridges. The respondent father, after requesting an opportunity to do so and consulting with whomever he wished to consult with,( Ms. Allenby was not present in the courtroom with him) indicated that he was prepared to apologize for that delay and that he was prepared to commit to finding a “replacement” for Family Bridges; he submitted that he needed time to prepare the apology letter, initially suggesting that he needed more than a week to do so. The court granted him two days to do that. At the expiration of that time, on June 1, 2018, rather than providing the court with the apology letter, the respondent father attempted to negotiate terms with the court upon which he was willing to provide that apology letter. The court made it very clear to him that he either provided an apology letter or the court would proceed with a final decision;

(q) on June 12, 2018, the court issued a 12 page Endorsement reviewing the recent events and setting out criteria for the replacement for Family Bridges;

(r) on July 25, 2018 the court issued a further Endorsement repeating its concerns about the delays that had taken place and addressing the need for the court to receive some information from Daniel Musselman being a social worker proposed by the respondent father as an alternative to Family Bridges;

(s) on August 3, 2018, the court issued an Endorsement seeking the respondent’s response to its July 25 Endorsement and in addition, setting out timelines for submissions regarding the Family Bridges expenses, costs since June 28, 2017, section 7 expenses since June 28, 2017 and ongoing child support;

(t) on September 19, 2018 this court issued a 13 page Endorsement in which it approved the respondent father’s choice as a replacement to Family Bridges, being Daniel Musselman MSW, and leaving it to Mr. Musselman as to when he wished to communicate with the court regarding the education of the respondent and Ms. Allenby;

(u) on September 25, 2018, having received submissions from the parties with respect to the same, the court issued Endorsements which can be summarized as follows:

(v) the respondent was to pay $2,476 within 10 days representing his share of 2017 section 7 expenses not including Family Bridges;

(w) the respondent was to pay $5,640.84 within 10 days representing his share of the children’s 2018 section 7 expenses not including Family Bridges and equipment expenses claimed by the applicant;

(x) commencing July 1, 2018 and on the first day of the month thereafter based on his 2017 income of $177,138 the respondent was to pay child support table amount of $3,094 per month;

(y) based on the income disclosure of both parties the respondent was to pay 65.7% of any reasonable section 7 expenses incurred by the applicant mother on behalf of the children;

(z) by another Endorsement issued September 25, 2018, the court ordered costs for the period June 28, 2017 to May 30, 2018 in the amount of $20,076.32 to be paid by the respondent to the applicant;

(aa) in a further Endorsement dated September 25, 2018 with respect to the reimbursement of Family Bridges expenses ( which had been paid by the applicant mother), the court ordered that the respondent pay $53,091.09 as a section 7 expense by October 5, 2018 and that those section 7 expenses be enforceable by the Family Responsibility Office. The court allowed the respondent until October 5, 2018 to provide submissions as to why those costs should not be immediately payable;

(bb) on October 15, 2018, having heard nothing from Daniel Musselman MSW, the court issued an Endorsement seeking an update from him;

(cc) the court received that update virtually immediately in response to the October 15 Endorsement and issued an Endorsement October 17 seeking submissions from both parties with respect to the same on October 31, 2018. The court issued an Endorsement granting the respondent father’s request for an extension of time to submit an alternative to Family Bridges. The court noted that he was now proposing Families Moving Forward being an alternative which he had dismissed some months earlier;

(dd) on November 19, 2018 having received the respondent’s submissions that he was not proceeding forward with Families Moving Forward, the court afforded him time to provide his final submissions with respect to a final Order to be issued by this court;

(ee) on December 4, 2018, the court issued an Endorsement confirming that it had requested the trial coordinator to bring this matter in so that the court could issue a final Order. The court granted the respondent’s request for an adjournment and adjourned the matter to January 23, 2019 for that purpose;

(ff) on December 24, 2018, the court granted the respondent father’s request for an adjournment of the January 23, 2019 date as he would be in California at that time;

(gg) instead of the court proceeding with the final Order, as set out in the earlier Endorsement, the respondent had retained counsel and through communication with this court, it was ascertained that his counsel wished to bring a motion seeking the appointment of the OCL and an Order that Dr. Irwin Butkowski (sic) be appointed to provide counselling for 10 hours of therapy for the family;

(hh) the court heard that motion on April 24, 2019 and issued a 32 page Endorsement on May 6, 2019 granting the request that the OCL be appointed and once again ordering that the respondent provide a proposal or proposals by May 31, 2019 as to a replacement for Family Bridges (as the respondent’s family law counsel had served the OCL, the court appreciated the OCL’s attendance at that motion and the receipt of their submissions with respect to the same). The court noted however that no information had been presented by his counsel as to whether or not Dr. Butkowsky had been contacted with respect to his agreement to be a replacement for Family Bridges;

(ii) on June 28, 2019, the court issued an Endorsement seeking input from the OCL as to when the court could anticipate its position;

(jj) on July 5, 2019, the court issued a Costs Endorsement dealing with costs claimed by the applicant between May 31, 2018 and May 6, 2019 and the respondent’s claim for costs for the April 24, 2019 motion. The court ordered that the applicant should be entitled to costs in the amount of $7,000 for the period of time May 31, 2018 to April 16, 2019 which costs would be payable within 90 days;

(kk) on September 18, 2019 the parties and the OCL appeared before the court and the court issued a short Endorsement with an Order to go in terms of the consent filed by the parties. This consent essentially provided that Dr. Shely Polak would be appointed to replace Family Bridges (she being a therapist proposed by the OCL and accepted by the parties). This Endorsement provided that the respondent father would be responsible for the payment of her retainer and fees up to a maximum amount. It further provided that the parties would follow the directions of Dr. Polak; that a written summary would be provided by Dr. Polak and to the court within 70 days of the commencement of her process and that she would have the authorization to recommend the commencement of unsupervised day access to the court and all parties. The court emphasizes that it was agreed by all parties including the respondent father and of the OCL that Dr. Polak would only be recommending and that she would not have authority to implement time with the children and the respondent with respect to unsupervised overnight access among other things;

(ll) on December 4, 2019 the court issued an Endorsement following a conference call during which the OCL recounted that Dr. Polak had met with the children and was scheduled to meet with the children and the respondent the next week. Mr. Codas, on behalf of the OCL, read a synopsis of the information that the OCL had received from Dr. Polak. The court noted that it had reviewed the submissions received from the applicant mother and that it had not received any submissions from the respondent father. His counsel indicated that he wished to put affidavit evidence before the court rather than submissions. The OCL communicated that it anticipated that Dr. Polak would be providing a report to the court shortly after the meeting with the respondent and the children (scheduled for December 10, 2019). At the request of the OCL, the matter was adjourned to a date in January or February 2020 to be set in consultation with the trial coordinator;

(mm) on February 12, 2020, given that the court had not received any further communication, the court issued an Endorsement seeking an update and confirming that based on previous Orders (including the consent Order of September 2019, that increased parenting time with the respondent was not to occur without further Order of the court and that the court was anticipating an update from Dr. Polak prior to that time);

(nn) on February 14, 2020, the court issued an Endorsement confirming that it had now reviewed Dr. Polak’s report of January 15, 2020 and confirming that she had made six recommendations. The court confirmed that Dr. Polak would have authorization to recommend commencement of unsupervised day access and that prior to the court authorizing expanded time (other than monitored visits) the court required an update as to the actions taken with respect to Dr. Polak’s recommendations. The court further indicated that if all parties , counsel and Dr. Polak believed it to be helpful, the court was prepared to have a conference call with all parties including Dr. Polak to address this matter;

(oo) in April 2020 shortly after the suspension of court operations due to Covid-19, the respondent father through his additional legal team that he had retained (being his litigation counsel) brought a motion seeking to have this court recuse itself on the basis of alleged bias. This court issued a lengthy Endorsement finding that the respondent’s motion was not urgent and that it could be brought forward in June 2020 when it was anticipated the courts would be reopening. The court once again offered to conference the matter in order to assist the parties and particularly the children and once again commented on the court’s frustration with the delays in this matter;

(pp) the respondent father sought leave to appeal the court’s April 30, 2020 decision and the Divisional Court issued a Ruling May 19, 2020 in which the leave to appeal was dismissed agreeing with this court that the recusal motion was not urgent. The Divisional Court made its dismissal Order without prejudice to the respondent father once again bringing a leave to appeal motion if a contested motion was before the court which could not be heard prior to the recusal motion;

(qq) in June 2020, two motions were brought before the court, one being the OCL motion for expanded parenting time between the children and the respondent father and the other being the respondent father’s motion. The court issued a further Endorsement June 30, 2020. It found that pursuant to the Divisional Court Ruling, the court could not hear a contested motion. The court offered a number of options, one being to conference the matter, the second being to expedite the recusal motion if requested to do so (the court noting that the recusal motion would be a long motion and that those motions were not typically being scheduled pursuant to the latest Notice to the Profession of June 26, 2020 from the Chief Justice). The court further suggested that if a consensus was achieved then the court could issue a consent Order. As well, the court suggested that Dr. Shely Polak perhaps be approached to attempt to “mediate” this expanded parenting time request;

(rr) on July 27, 2020, having received a consent, the court issued a consent Order which expanded the respondent father’s time with the children from three hours per week to 27 hours per week (close to the number of hours that he had initially been requesting through the earlier motion);

(ss) the OCL then brought a further motion seeking an Order allowing the eldest child AIV who at that point was 17 ½ years of age, to be excluded from previous Orders and to basically be allowed to make her own arrangements with her parents as to the time that she would spend with each. The court issued an Endorsement October 30, 2020 in which it indicated that as the motion was contested, the court could not deal with it. The court noted however that no request had been made by the respondent father or his litigation counsel since June 30, 2020 to ask the court or the trial coordinator to expedite his recusal motion. The court was made aware by the OCL motion that there was a pending date of November 3, 2020 for the parties before the Divisional Court once again;

(tt) on November 5, 2020 the Divisional Court issued a Ruling based on the respondent father’s further leave to appeal motion. In that Ruling, it indicated that this court had the following options:, to ask the Regional Senior Justice to appoint a new Case Management Judge, to expedite the hearing of the recusal motion, to direct that the OCL motion be heard by another judge. The Divisional Court also directed the Regional Senior Justice to appoint a new Case Management Judge on a temporary basis until the recusal motion is heard. It indicated, of course, that the appointment could then be made permanent if this court requested that, in which case there would be no need to hear the records motion;

(uu) as a result of that Divisional Court decision, while this court contemplated whether or not to simply ask the Regional Senior Justice to appoint another justice permanently on this file, a Case Conference was heard by Justice Jain who issued an Endorsement with respect to the same; and

(vv) as well, Justice Sutherland in December 2020 heard the motion pursuant to which the OCL, on behalf of the two younger children and the respondent father were seeking an Order essentially implementing a 50/50 parenting time. The applicant mother had consented to the OCL motion with respect to AIV being able to determine her own parenting time with each parent.

[38] This court has taken considerable time to contemplate whether or not it should voluntarily step aside. The court wishes to stress that in making this decision, the primary concern for it has been the best interests of these children and how future damage to them can hopefully be minimized.

[39] The court has reached a decision on that issue. The court has decided to voluntarily step aside.

[40] The court wishes to stress that it in no way feels that it has been in any way biased against the respondent father. In fact, to the contrary, this court is of the view that it has exercised far more patience with the respondent father than any neutral judge could ever be expected to have exercised. This court has invested days, weeks and months of its time in order to assist the children and in order to try to get the respondent father and Ms. Allenby to see what is obvious to so many others but apparently still something that they either cannot or will not accept.

Acceptance of Higher Authority

[41] This court can appreciate having relatively little information in front of it with respect to the background of this case, how and why the Divisional Court came to the decision that it did. It appears obvious from the Divisional Court’s decision that the court saw the children wanting to move forward and not being able to do so because of the recusal motion. The Divisional Court had limited information in front of it and it appears quite understandably, wanted to ensure that the children were not “stuck in the middle.”

[42] This court respects higher Authority, not only that of appellate courts but this court is of the view that at some point in time we will each be answerable to a far higher Authority.

[43] This court offered, in its June 30, 2020 decision, to do whatever it could to expedite this case and the recusal motion. This court finds it very interesting that the respondent father and his litigation counsel did not reach out to this court, nor did they reach out to the trial coordinator between June 30 and November 3 when the Divisional Court hearing was held in order to seek to have this case expedited.

[44] Should it have been this court’s responsibility and not that of the Respondent and his litigation counsel to take the initiative to do so? Perhaps.

[45] What the respondent father and his litigation counsel apparently decided was a far better strategy was to go to the Divisional Court with the argument essentially that the children should not be held in a state of paralysis in this litigation “chess game.” The court uses that reference because that is what it appears s was respondent father’s strategy. He and his litigation counsel did nothing to move the recusal motion forward but instead apparently felt the better strategy was to leave the children in a state of limbo and to simply appeal this court’s June 30, 2020 decision. At no time did the respondent father or his counsel avail themselves of the court’s offer to attempt to conference this matter, nor to try to expedite the recusal motion. They instead continued with the mantra that this court needed to be recused because it obviously did not fit with the respondent’s agenda.

[46] Presumably, the respondent and his litigation counsel are quite pleased that their strategy was “successful”.

[47] This court also finds it supremely ironic that it has learned that the respondent father still owes the applicant mother approximately $60,000 in costs and other outstanding Orders made by this court and yet still receives an audience to pursue his agenda. Rule 1(8) of the Family Law Rules is there for a reason and indicates that when parties are in breach of previous court Orders they should not get a further audience with the court.

[48] The respondent father has not paid the cost Orders that have been made now well over two years ago. Further, he has not paid the section 7 Orders that have been made well over two years ago.

[49] Rule 2 of the Family Law Rules requires that courts act “justly.”

[50] This court is well aware, of course, of appellate decisions that indicate that when it comes to custody/access/parenting time/best interests of the children that courts should not preclude a hearing based on one of the parties being in breach of financial obligations to the other party.

[51] Having said that, this court finds it time that courts collectively re-examine whether or not that rule should be applied where an alienating parent basically uses the children as pawns to find an excuse for the court to grant that which the alienating parent is seeking when, the alienating parent is at the same time flagrantly disobeying court Orders which were designed to attempt to change the channel and to assist the children.

[52] To this court, it seems totally contrary to public policy that an alienating parent can flaunt existing court Orders which requires him to pay more than $60,000 in costs and expenses that the other parent has incurred such that she is in a position of not being able to afford legal representation while he has two high priced legal teams and at least four lawyers working on his behalf to continue to litigate.

[53] This court views a case such as this, where because a party has not paid costs ordered against him and thus the opposing party cannot afford counsel, while at the same time the breaching party has two legal teams working on his behalf a flagrant breach of the purpose of Rule 1(8) and arguably the exact reason why that Rule was enacted.

[54] How possibly is this “just” as Rule 2 of the FLR’s requires?

Respondent Father’s Blame Game

[55] The respondent father, as noted in previous decisions of this court and particularly in the trial decision, has been consistent in one area. Whenever an individual or an organization has tried to help this family, and has “dared” to disagree with his narrative, the respondent father has claimed that they are “biased” and has turned his guns on them:

(a) as noted in the trial decision, this began with Howard Hurwitz and the section 30 assessment. At one point he sought to withdraw from the process because he did not like the way it was going and he alleged that Howard Hurwitz was not neutral. Following the assessment when he did not agree with the conclusions, he indicated that he had “problems with Howard Hurwitz’ process”;

(b) Doug Manning, was agreed by the parties to take on a parenting coordination role following the consent of 2013. The respondent father found fault with him alleging that he was biased as well;

(c) the respondent father took issue with the Children’s Aid Society and in particular with Doug Cochrane of that Society;

(d) the respondent father took issue with some of the OPP officers who responded to more than 30 occurrences relating to conflict between the parties and issues of enforcing the parenting time with the mother. The court noted in its trial decision that various OPP officers concluded that the father was influencing the children;

(e) the father took issue with whomever was attempting to assist the family with alleviating the problems they were facing;

(f) following the trial, the father, of course, took issue with Family Bridges alleging that they were biased. The father claimed, that Family Bridges was not effective. The court notes that the intensive workshop over four days with the applicant mother and the children conducted by Family Bridges was incredibly effective and essentially caused the children to do a “180” and virtually immediately change their attitude with respect to their mother;

(g) the father has now turned his guns on this court alleging that this court is biased;

(h) the obvious conclusion is that the father takes issue with anyone or any organization who does not agree with him;

(i) the court notes that it is often said about narcissists that they attack the truth teller because they do not want to face the truth; and

(j) during the initial section 30 custody access assessment, Howard Hurwitz referred the parties to Dr. Olga Henderson for a psychological assessment. The court found it very prophetic that now almost nine years ago, she made the observation that the respondent father needs to be in control.

Initial Optimism Following Trial

[56] Immediately after reading the last 20 pages of its decision to the parties and their families, the court met with the children who had at the court’s request been brought to court, and the court explained the decision to them.

[57] The court then invited the respondent father and any members of his family who wished to do so, to meet with the children and say their “goodbyes” for at least the next 90 days.

[58] As was outlined in subsequent Endorsements from this court, the court was optimistic by the father’s reaction to the children at that time.

[59] For a short time thereafter, it appeared that the respondent father was committed to the therapy and that he was making progress with respect to changing from the way he had been in the past.

[60] That, however was somewhat short-lived and in December 2017 the respondent father still represented by his trial counsel, brought a motion asking that the trial decision be varied to remove Family Bridges and to essentially restore the respondent father’s parenting time to that which existed prior to trial which had been essentially an equal sharing of time with the applicant mother.

[61] The court declined to make that Order. The respondent father’s counsel and his partner, Christine Allenby were all present in court and were aware that the court intended to meet with the children that afternoon in order to update them with respect to progress.

[62] The court therefore needed to know from the respondent father if, given the court’s decision not to remove Family Bridges, was he prepared to continue with Family Bridges and to move forward? The court indicated to the respondent father and his counsel that it did not intend to share with Family Bridges the rationale the father put forward to remove Family Bridges so as not to “taint” the process and to ensure that Family Bridges was not jaundiced by the respondent father’s motion to have them removed.

[63] The respondent father, his counsel and Ms. Allenby each gave the court assurances that they were moving forward with Family Bridges and that the children could be so advised.

[64] Based on the report received from Family Bridges it was anticipated that assuming that the father recommenced his therapy with them, monitored visits with the children would take place in the very near future and expanded visits would take place shortly thereafter.

[65] The respondent father was well aware that this would be communicated by the court to the children.

[66] As set out in subsequent Endorsements, the court did communicate this to the children and relayed to them that they could expect that monitored visits would be taking place in the very near future.

[67] It was only approximately two months later that the court learned that contrary to his promises made to the court, the respondent father had no intention of returning to Family Bridges and had on December 7, 2017, deliberately misled the court knowing that the court would be relaying this information to his children and would be creating an unrealistic expectation with them as to when contact with their father would resume.

[68] There were a series of Endorsements made by this court between February 2018 and May 2018 in which the court was continually pushing the respondent father to advise of his position and whether or not he was seeking out an alternative to Family Bridges so that therapy could resume and so that contact with the children could take place. Those Endorsements will show that it was the respondent father who was, despite being pushed by the court, continually asking for extensions of time providing various excuses.

[69] It was only some months later that the court received another motion from the respondent father seeking to have Family Bridges removed as the therapist that the court learned what in fact was really going on.

[70] In the father’s materials, including an affidavit from his partner Christine Allenby, it was revealed that Family Bridges had requested that she attend and be part of the sessions with the respondent father. Based on her own evidence, she, at the first attendance, without ever having met Family Bridges, took a concealed recording device into the sessions and began surreptitiously recording them. Subsequently she obtained transcripts of those surreptitious recordings and the respondent father used those as “evidence” to seek the removal of Family Bridges.

[71] This court found that not only was that contrary to public policy but also was explicitly contrary to an agreement that the respondent father had signed with Family Bridges agreeing that he would not record those sessions.

[72] Until that point in time, the court had still not rendered a final decision. The court drafted a final decision and in late May 2017, the court read that decision to the parties.

[73] Perhaps coincidentally, the respondent father shared with the court that he had received that very day, a letter from the parties’ eldest child, that she had delivered to his mailbox.

[74] If the respondent father did not believe this court before that the children (and in particular the eldest child) were frustrated, that letter left no doubt of their frustration.

[75] The court gave the respondent father a choice; he could either agree that he would actively pursue a replacement for Family Bridges and participate in therapy to once again resume contact with the children or he could advise the court that he was not willing to do so in which case the court would simply render a final decision which the court made very clear would be a decision that there would be no contact between he and the children.

[76] The court made it very clear that as a result of his actions and those of Ms. Allenby, he had put the court in a position whereby the court now lacked credibility with the children having, based on his promise to the court, relayed to the children that contact would occur in either late December 2017 or early January 2018.

[77] Therefore, the court made it a condition of the respondent father resuming therapy and the court relaying this to the children that the respondent father take responsibility for his actions and that he prepare a letter of apology to the children so that the children could see that it was not their mother, not the court, and not Family Bridges that was responsible for the six month delay.

[78] Up until that point, when the court had met with and corresponded with the children, the court had attempted to not “lay blame” for what happened up until that point but had maintained positivity with the children that the future could be better than the past. Even in December 2017, after the motion by the respondent to remove Family Bridges, the court’s message to the children was that we all learn at different speeds and the father was committed to proceeding with that education.

[79] The court concluded however, that no one other than the respondent father and perhaps Ms. Allenby were responsible for the six month delay, (between December 2017 and June 2018). The children were understandably frustrated by the six month delay and the court felt at that point it was left with no option but to share with the children that their father had taken responsibility for this delay.

[80] The court continued to maintain optimism that the respondent father would genuinely engage in therapy and that contact with the children could resume.

[81] After proposing EAP therapists who clearly were not qualified or willing to take on the role required of them, the respondent father and Ms. Allenby retained Daniel Musselman MSW to take on that role.

[82] When the court followed up with Mr. Musselman to find out how matters were progressing, the court received a letter from him which has been attached to a recent Endorsement. Essentially, Mr. Musselman concluded that the respondent father and Ms. Allenby misrepresented things to him trying to manipulate him and attempting to portray themselves as the victim. After reading this court’s trial decision and piecing together the actions of the respondent father and Ms. Allenby, Mr. Musselman concluded that he could not take on that role. In fact, he suggested to the court that perhaps a final decision should be rendered. Mr. Musselman also concluded that any gains or changes that the court had believed the respondent may have made to that point in time were likely not authentic.

[83] The court gave the respondent father a further opportunity to find an alternative to continue with his education. Following that event, the respondent father at first proposed Families Moving Forward but then determined that he was not willing to pay even their retainer to review the file and decided not to proceed with them.

[84] The respondent father had claimed his financial inability to proceed with the therapy as one of his main rationales for not doing so. However, in the spring of 2019 the respondent father retained his current family law counsel who brought a motion to have the OCL appointed. The respondent father claimed of course that it was the distress of the children exhibited through letters that had been written to various authorities that precipitated his doing so. Having now had two legal teams on retainer, the respondent father has demonstrated that money no longer appears to be an issue.

[85] The court granted that motion in June 2019. The court noted in its Cost Endorsement with respect to that motion that it was somewhat ironic that the quantum of legal fees that he had paid for one motion were equal to what he could have paid Family Bridges 1 ½ years earlier to conclude their involvement and likely to have resulted in him resuming contact with the children at that time. As noted elsewhere, the distress of the children was precipitated by the respondent father’s refusal to continue with therapy and thereby have resumed contact with the children.

[86] The current OCL was first before the court in September 2019 at which time, on consent, the court ordered that which was being requested by the OCL, to involve Dr. Shely Polak as a therapist to assist this family.

[87] As a result of the therapy with Dr. Polak, the first known contact between the respondent father and his family and the children occurred in late 2019. Based on Dr. Polak’s recommendation, the parenting time expanded to three hours per week with the children and the respondent father.

[88] It appeared at that point that finally matters were progressing and that with the help of Dr. Polak, expanded parenting time could take place. The court was once again optimistic that perhaps things in fact had changed.

[89] However, the respondent father then decided to retain a second legal team, being litigation counsel who were retained in addition to his family law counsel. Shortly after the Covid-19 pandemic began and the court suspended operations his litigation counsel filed a motion asking this court to recuse itself.

[90] For reasons set out in its decision, this court did not find that to be an urgent motion and ordered that such a motion could proceed once the suspension of operations of the court was lifted which at that time was anticipated to be in June 2020.

[91] The respondent father instructed his litigation counsel to appeal that decision which resulted in a Divisional Court Ruling.

[92] That Ruling (with which the court concurs) determined that the court could not hear any contested motions until the recusal motion was heard.

[93] This court learned of the Divisional Court Ruling when a subsequent motion was brought for expanded access.

[94] The court notes that in the material filed with that motion was an updated report from Dr. Shely Polak (as had been previously ordered by this court prior to an expansion of access being requested). In her May 12, 2020 report Dr. Polak notes that the recusal motion left the children disillusioned, disappointed and frustrated with more delay. She does not report that any of her six recommendations made in January 2020 had as of that time been followed.

[95] This court rendered a decision on the expanded access motion in late June 2019. As detailed elsewhere in the synopsis of the Orders made by this court, in that Ruling the court found that because of the Divisional Court Ruling the court’s hands were essentially “tied” and it could not hear a contested motion. However, the court indicated in that decision that it was prepared, with the assistance of the court’s Regional Senior Justice and the trial coordinator to schedule the recusal motion so that the matter could move forward.

[96] The respondent father’s litigation counsel did not pursue moving that recusal motion forward but instead, once again, appealed that decision.

[97] In October 2020, the Divisional Court ruled that the children were basically in a state of paralysis because of the recusal motion and therefore unless this court was willing to step aside (having seized itself of further motions and case management), a temporary case manager should be appointed to deal with conferences and another judge be appointed to deal with expanded parenting time motion.

[98] That resulted in a Case Conference taking place with Justice Jain and a motion being heard by Justice Sutherland of this court.

[99] This court has now had the benefit of reading Justice Sutherland’s decision.

[100] This court finds that Justice Sutherland, although he obviously did not have the “benefit” of having sat through the trial or having dealt with this matter over the last three years, made some interesting observations.

[101] He observed for example that:

“the father has a winner takes all approach. His approach has been to vindicate his behaviour and show that he is the victim. He is right and all others are wrong. Thus the court finds much credibility in the submissions of the mother that there is not compelling evidence that the father has changed and that this motion is premature.”

[101] The court finds it interesting that a judge new to the case would make these observations. Also of interest as detailed in the trial decision, Justice Graham who heard two motions in this case found the respondent father to be totally unreasonable in his then actions and also noted that police enforcement of parenting time was required because of the father and that if the children ended up in a police cruiser as a result of his Order (which they eventually did) that it would be the father who was responsible for that.

[102] Justice Sutherland indicates “Mr. Codas has made it clear that the OCL and Dr. Polak will continue to be involved and monitor the situation.”

[103] The children are now 17, 15 and 13. Justice Sutherland noted:

“the court has heard loud and clear the submissions of the OCL and Mr. Codas. The court has heard the wishes of ACV and REMV. The court has also heard the requirements of Dr. Polak to ascertain the conduct of the father and if he has truly learned the principles and tools acquired in the therapy sessions. The court also wishes to say to the mother, that the court has similar concerns of whether the father truly learned and has changed his behaviour. The two examples of behaviours outlined above give the court pause.”

[104] Justice Sutherland then concludes:

“the court accepts that to ascertain the father’s behaviour and to determine if he has changed to assess the best interests of the children he requires the children in his care for a longer period of time. Accordingly ,the court grants the relief requested by the father concerning the increase in visitation. The court accepts that it would be in the best interest of ACV and REMV that the father’s behaviour has changed, permitting both parents to have positive relationships with them. The court also expects as stated by Mr. Codas and Dr. Polak that the increase in visitation will be monitored with extensive follow-ups with the mother, ACV and REMV.”

[105] The situation currently is that as a result of Justice Sutherland’s Order, the children are spending roughly equal amounts of time with each of their parents. Based on a previous Order, the older child is essentially free to decide herself the time that she will spend with each of her parents.

Recusal Motion

[106] Therefore, given the current situation, the respondent father’s recusal motion is to some extent “moot” as he has achieved what he set out to get presumably and that is to restore his 50-50 parenting time.

[107] There are temporary Orders in place and at some point in time, there are will need to be a trial or a final consent. The most recent Order of Justice Sutherland, combined with the expressed intentions of AIV and combined with the submissions of the OCL and the most recent report of Dr. Polak all indicate that continued monitoring is to take place.

[108] In his materials, the respondent father has attempted to make much of the court’s correspondence with the children and letters that the oldest child AIV had sent to various governmental authorities seeking help to have more time with her father.

[109] This court wants to make it very clear that based on the evidence that was heard at trial and based on the applicant mother’s position throughout since then, her position has always been the same, that being that the children should have a healthy relationship with both parents and spend quality time with each parent. She has stated that from the outset as set out in the initial custody access assessment report which was done shortly after the separation.

[110] This court’s position since its involvement with the matter has been consistent as well. It has been the objective of this court from the time of trial that the children could have a healthy relationship with both parents and be able to spend quality time with each parent. That is set out in this court’s trial decision and multiple times thereafter.

[111] This court also indicated in its trial decision that it was as if the father was so determined to destroy the mother that he was (obviously in a figurative sense) prepared to put a bayonet through the children in order to get to the mother.

[112] To some extent, it would appear that the father’s actions have been consistent and that the court was prophetic in its analysis at trial.

[113] Virtually all of the delays that occurred in the children not having resumed contact with the father within a short period of time after the trial decision have been as a result of the father’s actions and inactions.

[114] Even when, as recently as June 2020, the court offered to assist in trying to expedite the recusal motion so that matters could move forward, the respondent and his litigation counsel did not seek to do so,. However, in what appears to be more indicia of an attitude not consistent with amicable resolution, .nor with a concern about how delays were affecting the children, the respondent father and his litigation team decided that they would appeal that decision rather than try to move it forward.

[115] This court is not in a position to know what the respondent’s true thought process has been. Having said that it appears plausible that he believed if he simply waited that matter out long enough, the children’s frustration would build to the extent that he would eventually get time with them without ever having to change his behaviour or genuinely engaging in any education.

[116] This court has always tried to live by the maxim “it’s not about you/me.”

[117] From the outset of this court’s judicial career (starting with my swearing in) this court indicated that cases should never be about the judge and should always be about the parties.

[118] Unfortunately, the respondent and his legal teams have now attempted to make this case about the judge.

[119] This court has learned that quite often people try to avoid dealing with the truth by attacking a truth teller.

[120] As detailed in my trial decision, and reiterated herein, the respondent father has demonstrated a pattern and propensity for attacking anyone who dares to disagree with him.

[121] This pattern was not immediately obvious to third parties when they became involved with this family. That is detailed in the trial decision and in the many reports from third parties who were involved with this family. In fact, it was not immediately obvious to this court either when this court first read the respondent father’s trial record.

[122] Eventually however, after being involved with the respondent father and the family for some time, those third-party professionals “figured out what was happening.”

[123] As a result of professionals seeing the situation for what it really was, the respondent father has alleged bias with virtually everyone who has been involved with this family. He did so with the custody access assessor (threatening to withdraw from the process because he did not like the outcome). He alleged bias by the police (there were two police forces involved with this family on at least 30 occasions prior to trial), the Children’s Aid Society, therapists who attempted to assist the family, mediators and social workers. The list is detailed in the trial decision.

Family Bridges

[124] The respondent father following the trial then alleged that Family Bridges was biased.

[125] This court has no vested interest in Family Bridges. Like any organization or individual, the organization is not perfect.

[126] However, what is and was very obvious is that through their intensive workshop within four days of working with the mother and the children, they were able to turn a situation around with the children and their relationship with their mother. That workshop clearly worked. The children, perhaps at least partially because of the meetings this court had with them, and motivated to see their father, genuinely participated that workshop and benefited from it.

[127] As set out earlier, it appeared that progress was being made by Family Bridges with the respondent father as well until Ms. Allenby became involved with them.

Court’s Communication with The Children

[128] In his litigation counsel’s materials, the respondent father attempts to negatively make a great deal out of this court meeting and communicating with the children and a great deal out of the children’s correspondence with this court and with other authorities.

[129] Typically, courts do not meet with children. Typically, this court does not meet with children.

[130] There are exceptions however as to when this court feels it is appropriate for a court to meet with the children.

[131] This court believes that it was the right decision to meet with the children immediately following the hearing of evidence. Without this court’s intervention, there is no doubt in this court’s mind that AIV’s grade 8 graduation would have been an unmitigated disaster. As a result of this court’s intervention, hopefully that was a day of which AIV will have positive memories.

[132] It is not easy for children to accept that they will not be seeing one of their parents nor that side of that parent’s extended family for a minimum of 90 days. It is particularly difficult for children to accept that when at that time, they are of the mindset that their father can do no wrong and their mother can do no right and a judge is placing them with their mother and precluding them from contact with their father.

[133] Once again, this court stands by its decision to meet with them at that time and to explain the rationale for so doing. Perhaps, that had some influence on the children in their openness to the Family Bridges intensive workshop and to them doing the “180” to which the court his earlier referred.

[134] The court then once again met with them in December 2017. The court at that time was frustrated with the delays and knew that the children were extremely frustrated with the delays. The court once again believes that explaining to them at that time that while their father had some difficulty getting “up to speed” he had committed at that point to continue with Family Bridges and the court had every reason to believe that visitation with the children would commence in the near future.

[135] The last time that the court met with the children was June 1, 2018. At that time, the court, depending upon the respondent father’s position earlier in the day was going to either advise them that its decision was final and there would be no further contact with their father or that their father was seeking out alternatives to Family Bridges and that while the process would be delayed further, the process would in fact continue.

[136] Once again, the court stands by its decision to meet with them at that time and further stands by its decision to share with them that their father had accepted responsibility for the six month delay which had occurred since December 7, 2017.

[137] In addition, as was set out in the respondent father’s recusal motion materials, the court corresponded with the children. Much of that correspondence was in response to AIV’s correspondence with the court. The unfortunate reality was that, quite understandably, she was frustrated (as were the other children) by the delays. The court well understood why these children were frustrated. This court was frustrated. In that correspondence, this court had no motivation other than trying to assist the children in dealing with a difficult situation.

[138] Prior to trial, the children’s behaviour (particularly the oldest child) towards her mother was nothing short of abhorrent. As a result of the alienation process, the child had on more than one occasion physically assaulted her mother, stolen items from her mother including court documents, called their mother the most vile names, refused any sort of authority from her mother, with the support of the respondent father and his partner had been surreptitiously intercepting private communication from her mother and channeling that to the respondent father to be used as “evidence.” The list goes on and on.

[139] The middle child had also been used as a pawn in the alienation although being somewhat younger, his involvement was less than that of his older sister.

[140] At the time of trial, the youngest child who was only 10 was less involved but was “going along with” his older siblings.

[141] Family Bridges not only made progress with the children and their relationship with their mother but was apparently making some progress with the respondent father as well.

[142] The evidence shows that whatever progress was being made came to an abrupt halt within a two month period. The timing of that change is coincidental with the involvement of the respondent’s partner Christine Allenby in the process. This was unknown to this court until months later.

Why Bother with This Lengthy Endorsement?

[143] Anyone reading this Endorsement may wonder why this court, having made the decision to step aside from this case, has taken the time to write such a lengthy rationale for so doing.

[144] Being the eternal optimist, the court could contemplate that perhaps something it said would influence and change the future behaviour of the respondent father and Ms. Allenby.

[145] This court is not that egomaniacal and has absolutely no delusions at this point that the respondent father or Ms. Allenby will listen to anything that this court has to say( or perhaps not even bother to read beyond the first paragraph of this endorsement). Miracles do happen but hoping for such is not a main objective of this Endorsement.

[146] With this case however, this court is long past being the eternal optimist with respect to that happening. One of the reasons why the court set out as much details it has is that other than the parties themselves and of course the children, no one has lived through as much of this family’s last 3 ½ years than this court.

[147] Courts can only speak through their Endorsements.

[148] There is a reason why appellate courts show deference to first instance courts and particularly trial courts.

[149] Sometimes as the saying goes, in order to fully understand something “you just have to have been there.”

[150] Far from being biased against the respondent father, the court reiterates that when it first read the trial record in this case, this court’s initial impression was that the applicant mother was being unreasonable and this court, based on the trial record alone expected that it would reach a decision totally opposite to that which it in fact reached after hearing the trial.

[151] So if this Endorsement is not written for the respondent, for whom?

[152] This court hopes that anyone who in future is trying to help this family will benefit from this court’s experience and the insights gained over the last 3 ½ years.

[153] Perhaps another court facing a severe alienation case will be inspired to help the children through a combination of the techniques used by this court.

[154] Perhaps an alienated parent will be inspired by the love demonstrated by the mother and by her determination to continue despite how bleak the future must have looked at times and despite being self represented and facing two experienced high priced legal teams.

[155] Perhaps an alienator will see what the respondent father and his partner were unable to see and that is that a change in behaviour could result in a healthy relationship with the children and the other parent and a short, rather than an extended period, of forced estrangement from their children

[156] Perhaps the children, with the benefit of hindsight and maturity will see the situation differently.

[157] As stated earlier this court is often the eternal optimist.

I Alienated, I Deceived and Then I Manipulated

[158] Now that this court has decided to step aside, there is a certain freedom in being able to more directly indicate this court’s observations and conclusions after having watched the respondent father over the last 3 ½ years.

[159] There is a famous quote from Julius Caesar, “veni vidi vici”, “I came, I saw, I conquered.”

[160] This court could summarize the actions and inactions of the respondent father and Ms. Allenby as “I alienated,…… I deceived…… and then I manipulated.”

[161] One might wonder, if this court is of such a view, why step aside?

[162] This court has come to the conclusion that having me further involved in this case will simply further his ability to continue his narrative and continue to damage the children by trying to convince them that I am the problem.

[163] This court has no doubt that the respondent and Ms. Allenby will simply try to portray this Endorsement as proof that this court was biased, as how could anyone other than someone who is biased possibly conclude that they alienated, deceived and then manipulated?

[164] Lest it be construed by any objective observer that this court’s Endorsement demonstrates that I am bitter, I can assure everyone that I am far from being bitter.

[165] This court has an expression that it refers to often “bitterness is like swallowing poison and expecting the other guy to die.”

[166] This court harbours no bitterness towards the respondent father or towards Ms. Allenby. The court finds it extremely unfortunate that they have taken the attitudes that they have and the damage that has resulted to these children as a result.

[167] There is a difference between being biased (a predisposition to a point of view), and holding someone accountable for their actions and inactions. Holding someone accountable for their actions does not meet the definition of bias.

[168] As indicated, after reading the trial record before sitting through the trial, I believed that I would likely rule the other way and that it was only after hearing, watching and reading what had occurred that I came to the conclusion that I did. It is only after watching the respondent and Ms. Allenby over the last three years that I have come to the conclusions that I have in this decision.

[169] I tried to be as neutral with the children as possible until the respondent and Ms. Allenby with their deception in December 2017 (which was discovered in April 2018) that I felt left me with no choice but to be honest with the children as to who was responsible for the delay of them not seeing their father, as this court had promised to them in December 2017.

[170] This court had absolutely no difficulty concluding that the respondent and Ms. Allenby were clear alienators at set out in the trial decision.

[171] Often in alienation cases there is also an element of justifiable estrangement by the other parent that combined with the alienation results in a fracture of the relationship between the children and the alienated parent.

[172] While the court did not and does not see the mother in this case as “perfect”, there was absolutely no evidence of any justifiable estrangement in this case.

[173] This court knows of no other way to describe the actions of the respondent and Ms. Allenby in December 2017 other than deception. While standing in front of this court, they each promised to continue with, and move forward with, Family Bridges knowing that this court was going to convey that message to the children. What this court did not know at that time, but learned some months later, was that Ms. Allenby had already, at the very commencement of her involvement with Family Bridges approximately one month earlier, taped those meetings surreptitiously and was intending to use those recordings in future. It is virtually inconceivable that the respondent father, in December 2017, was not then aware of Ms. Allenby’s actions. Certainly by April 2018 he was not only aware but supportive of those.

[174] Clearly neither the respondent nor Ms. Allenby at that time that they made the promise to this court had any intention of going back to Family Bridges.

[175] Their only intention was to utilize the “evidence” that they felt they had garnered (I use the word evidence loosely because there was no “smoking gun” or evidence that Family Bridges had done what the respondent and Ms. Allenby were alleging). There is no other word to describe it other than they bold face lied to the court which this court has called deception.

[176] The respondent’s actions and inactions since the spring of 2018 can only be described as manipulation.

[177] The respondent kept asking for extensions of time all the time making verbal representations that he was going to continue the therapy that this court had ordered him to do in order to resume his time with the children. Other than the retaining of Daniel Musselman, he did nothing to move that therapy forward over the next almost two years.

[178] He then eventually employed a different strategy. He decided to retain counsel who would pursue his then litigious strategy. Particularly since early 2020, and the retaining of his second legal team, his strategy has changed to the first option which this court referred to at the conclusion of the trial, that being that instead of trying to change and resolve the problem amicably, his strategy is if you don’t like the decision, you simply appeal it.

[179] Instead of addressing the problem, he and his two legal teams decided to use the system in order to attain their objective. He and they may feel that they have been successful and to some extent they have been, particularly with the most recent Divisional Court decision and the ramifications thereof.

[180] Even though his counsel claimed that there was urgency in moving the recusal motion forward, at no time did his counsel pursue the objective through this court or the trial coordinator of moving that motion as quickly as possible. Instead, what they did was utilize the frustration of the children and the retainer of the OCL to then get an appellate court, who did not have the advantage of 3 ½ years of observation of the respondent, as did this court, to achieve their objective.

[181] As this court said during its swearing-in speech, no case should be about the judge. That includes this case. The respondent has attempted to simply add this judge to his list of people who are biased against him and who are responsible for his problems.

[182] He undoubtedly continues with the “victim” mentality as described by Daniel Musselman and the “control” mentality described by the psychologist during the custody access assessment now almost 10 years ago.

[183] This court could have, as Mr. Musselman totally appropriately suggested more than two years ago, concluded that the respondent and Ms. Allenby had no interest in changing and, as he described them at that time as manipulating and having a victim mentality. The court gave the respondent many chances after that observation by Mr. Musselman.”

[184] This court notes Justice Sutherland’s careful choice of wording when he says that the first “known contact” between the respondent and the children after June 28, 2017 was in December 2019. This court read the letters that AIV had sent to the various authorities in late 2018.

[185] This court has no proof that there was any contact between the respondent or any of his family members and the children between June 2017 and December 2019.

[186] However, with the Internet, it is virtually impossible to ensure that parties will strictly abide by the non-contact Order and have no direct or indirect contact. There are indicia that there may be some connection between the respondent with respect to those letters and at least one local politician to whom those letters were sent.

One Tin Soldier

[187] The court subtitled this Endorsement “One Tin Soldier.” The reason for so doing is that the lyrics of that 1960’s song described an attack against people who were willing to be reasonable and come to a compromise solution that would benefit all. Instead, the attacker decided to kill the other party only to learn that the “gold treasure” that they thought they were receiving was in fact a stone that when turned over read “peace on earth.”

[188] The lyrics of that song are as follows:

One Tin Soldier

The Original Caste

Listen, children, to a story That was written long ago 'Bout a kingdom on a mountain And the valley-folk below

On the mountain was a treasure Buried deep beneath the stone And the valley-people swore They'd have it for their very own

Go ahead and hate your neighbor Go ahead and cheat a friend Do it in the name of heaven You can justify it in the end There won't be any trumpets blowing Come the judgment day On the bloody morning after One tin soldier rides away

So the people of the valley Sent a message up the hill Asking for the buried treasure Tons of gold for which they'd kill

It came an answer from the mountain With our brothers we will share All the secrets of our mountain All the riches buried there

Go ahead and hate your neighbor Go ahead and cheat a friend Do it in the name of heaven You can justify it in the end There won't be any trumpets blowing Come the judgment day On the bloody morning after One tin soldier rides away

Now the valley cried with anger "Mount your horses! Draw your sword!" And they killed the mountain-people So they won their just reward

Now they stood beside the treasure On the mountain, dark and red Turned the stone and looked beneath it "Peace on Earth" was all it said

Go ahead and hate your neighbor Go ahead and cheat a friend Do it in the name of heaven You can justify it in the end There won't be any trumpets blowing Come the judgment day On the bloody morning after One tin soldier rides away

Go ahead and hate your neighbor Go ahead and cheat a friend Do it in the name of heaven You can justify it in the end There won't be any trumpets blowing Come the judgment day On the bloody morning after One tin soldier rides away

[189] There is a tremendous similarity in this case. From the outset and consistently thereafter, the applicant mother has said that she simply wanted peace and wanted the children to be able to go freely between the party’s two homes and be able to be happy in doing so.

[190] This court stated in its trial decision and subsequently that its objective was exactly the same.

[191] Howard Hurwitz noted in his custody access assessment that the respondent father had an attitude that he was “at war.”

[192] The respondent and Ms. Allenby have demonstrated that they were in fact “at war.” As this court clearly found in the trial decision, their objective was to destroy any relationship that the children had with their mother.

[193] Fast forwarding to the recent past, and the observation made by Justice Sutherland with respect to the car that the applicant mother acquired for AIV, it would appear that the objective of the respondent and Ms. Allenby may not have changed all that much even after having 2 ½ years away from a regular relationship with the children.

[194] As stated elsewhere, one can only hope that with the continued monitoring by the courts, the assistance of the OCL and Dr. Polak, as well as the maturation of the children and the benefit of the relationship that they have developed with their mother over the last 3 ½ years, that any such damage can be minimized.

[195] AIV may currently see the situation one way through the eyes of a 17 ½ year-old. Another of the court’s expressions is that “when I was 16 my mother knew nothing, it is amazing how much she had learned by the time I was 21”. One can only hope that that will apply to all of the children.

[196] The really sad reality for this court is that if the respondent father had genuinely participated in the Family Bridges program, at the outset as he appeared to be doing until Ms. Allenby became involved, in all likelihood he would have resumed his parenting time with the children within five or six months from the June 2017 Order. Had that been the case, the children would have been enjoying a peaceful and healthy relationship with both parents for approximately three years at this point in time.

[197] As well, had he obeyed court Orders he could have paid the costs and section 7 expenses ordered to be paid to the mother, instead of in all likelihood having spent far more on his legal teams.

[198] As set out herein and in various other Endorsements previously, whatever progress he had been making, came to a screeching halt when Ms. Allenby became involved with Family Bridges. If there ever had been a genuine attempt to change, he agenda changed for the respondent father from one of accepting responsibility, learning from the past and attempting to make the future different to one of continuing with prior behaviours and to continuing the blame game and turning the guns on everyone else who happened to disagree with him and not being the least bit interested in shining the light on himself and perhaps changing. At the end of the trial, the court learned that Ms. Allenby , who at the time had a very responsible job in the Premier’s office at Queen’s Park, had attended the courthouse each day of the trial but was not called as a witness and did not sit in the body of the court. A lot could be read into that.

[199] This court has tremendous respect for Stephen Codas, the OCL counsel and for Alyson Gardner, the OCL social work assist. Their role is to put forward the views and preferences of the children, which they have done. This court is well aware that, in their materials, they indicate that they believe that the children are giving them independent views and have not been influenced by the father (or Ms. Allenby).

[200] One can only hope that they are right and one can only hope, further, that given the maturation of these children now 17, 15 and 13, that even if the alienation techniques of the respondent father and Ms. Allenby continue, that the children will have had the benefit of their own experience over the last 3 ½ years with their mother and the benefit of the wisdom of having lived a few more years to make conclusions for themselves.

[201] This court is deeply concerned about AIV in particular. The court notes Justice Sutherland’s observation with respect to the mother buying her a car, her initial excitement and then the child’s angry reaction when she returns home from spending time with her father and Ms. Allenby regarding the same. Justice Sutherland noted that this was extremely problematic and this court notes the same.

[202] Unfortunately that looks all too familiar to what has transpired in the past.

[203] Perhaps because she was older at the time, and the alienation had such a profound impact on her, and, given the continued actions and inactions of the respondent father and Ms. Allenby, that she has been most damaged by the alienation. That is a conclusion for others to make but is one possible explanation.

[204] The children, the OCL and so far as this court is aware, the respondent father have all said that they intend to continue with Dr. Shely Polak.

[205] This court has tremendous respect for Dr. Polak as well. However, as good as she is, no therapist can truly help someone who does not wish to be helped.

[206] Even if she cannot change the behaviour of the respondent father and Ms. Allenby, one can only hope that continued involvement will be beneficial to the children.

[207] The best that one can hope is that with the continued oversight of the court, the OCL, Dr. Polak and others, that any future damage to these children can be minimized.

[208] This court decided to step aside because it concluded that its involvement in the future could not be beneficial and would be a distraction that would likely exacerbate the situation so far as the children were concerned.

[209] One would have to be naïve to assume that if this court had decided to hear the recusal motion and rendered a decision that it was not biased and was not going to recuse itself, that the respondent father and his litigation team would not appeal that decision.

[210] Quite frankly, this court was not the least bit worried about having that decision appealed.

[211] This court is confident that an appellate court would see this for what it is.

[212] As stated earlier, there is a tremendous difference between a court being biased against somebody and a court holding someone accountable for their actions.

[213] However, even if an appellate court were to see it differently and decide that this court erred in finding that it was not biased, that would be a decision that this court would accept. This court reiterates it is not about me.

[214] The court has already indicated that it accepts decisions from a higher Authority. Even if it disagrees with those decisions, this court has an appreciation for the system. Lower courts make the decisions that they feel are appropriate and appellate courts make decisions that they feel are appropriate.

[215] This court finds it somewhat ironic that within this case, time and time again the respondent father has demonstrated that he has no respect for authority. Yet, he has climbed the corporate ladder within the fire department which, one would assume would not have happened if he had not demonstrated a respect for authority within that organization. As well, it finds it ironic that someone who is in a position of the District Chief and therefore is in authority expects others to respect him in that position but fails to respect anyone else who attempts to exercise any authority over him within this case.

[216] This court learned that months after that trial decision the respondent father had not even bothered to read this court’s trial decision. That piece of information came from his then counsel.

[217] It is quite possible that the respondent father will not even bother to read this decision either.

[218] The court would however hope that future courts dealing with this matter would take the time to read this decision and that anyone attempting to help this family in the future would do likewise so that they could receive an insight from this court as to at least this court’s perspective on what has occurred to date.

[219] As well, this court hopes that some other courts dealing with alienation cases would be encouraged by something said in this decision to carry on trying to assist children involved in such situations. There is absolutely no doubt that these children are the victims and courts must do whatever we can to try to assist those children.

[220] While others may feel that “giving up” on the situation and simply turning the children over to the alienator may be the easy way out, this court looks at the fact that the children have had a good relationship with their mother for the last 3 ½ years and feels that this is some measure of success even if this court and others were not able to achieve the ultimate objective, that being to have the alienator see that there could in fact be a better way.

[221] The court genuinely wishes this family well. The Varcoe children are bright and wonderful children who, based on this court’s last contact with them and, based on everything that this court has read since, believes that despite what they have been through, they are reasonably well adjusted and continue to excel both academically and athletically.

[222] They deserve to have the ability to have a loving and peaceful relationship with both parents. One can only hope that somehow they are able to achieve that objective.

[223] This court wishes to continue to encourage the applicant mother. As indicated in the trial decision, many, if not most women in her position, would have given up long before the trial. She did not and has continued to, in this court’s opinion, strive for a peaceful resolution and the objective that she has had since the time of the separation, that being that the children could have a positive relationship with both parents. That is what loving parents do…. Put the needs of their children ahead of their own. As indicated in the trial decision, similar to everyone else, the applicant mother is far from perfect but is certainly to be commended on her dedication to trying to make life better for her children.

[224] She withstood the onslaught of the slings and arrows prior to trial and now, despite being without funds due to the respondent father’s breach of previous court Orders, she has soldiered on unrepresented while facing two high priced legal teams retained by the respondent father.

[225] Lastly, as a conclusion, nothing would please this court more than to eventually learn that the respondent father and Ms. Allenby prove me wrong by having learned something along the way and being able to demonstrate that the future can indeed be different than the past and they can move forward in a peaceable manner so that the children can have a loving relationship with both parents.

Justice R.T. Bennett

DATE: February 17, 2021