Court File and Parties

COURT FILE NO.: FC-19-FS054304-0000

DATE: 2021-12-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R.S.P., Applicant

AND:

H.L.C. (P.), Respondent

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: N. IQBAL, as agent, for the Applicant

H. CARON, Counsel for the Respondent

V. RUOSO, for the children through the Office of the Children’s Lawyer

HEARD: November 25, 2021

ENDORSEMENT

Scope of Hearing and Motion/Cross-Motion Background

[1] The Respondent Mother, H.L.C. (“Mother”), sought a variety of relief in her Amended Notice of Motion of September 13, 2021, of which only the following issues remained outstanding when the matter was scheduled for argument on November 10, 2021:

a. division of Professional Development days on an alternating basis with each parent;

b. to have care of the children during any school closures;

c. right of first refusal should the Applicant Father, R.C.P. (“Father”), not be available for a period of two hours or greater;

d. a requirement that the parties’ daughter, (14) (“Daughter”), is not to be left in a caregiving role to their son;

e. a requirement that the parties’ son, (12) (“Son”), is not to be left unattended by either party for more than two hours;

f. interim, without prejudice joint decision-making;

g. prompt notification of any emergency medical care for either child;

h. reconciliation counselling between Mother and Daughter, any out-of-pocket expense for which, after the application of any extended health benefits available to either party through his or her employment, is to be divided equally between the parties;

i. participation by the children in one extracurricular activity of each child’s choosing, the cost of which is to be divided equally between the parties; and

j. costs.

[2] The children are represented by Ms. Ruoso with the support of Ms. Christine Taylor, Clinician, through the Office of the Children’s Lawyer (“OCL”).

[3] Father did not initially bring a cross-motion to seek alternate relief regarding the parenting schedule. Although certainly the Court is tasked with a broad review of a family’s parenting schedule in accordance with the children’s best interests when one parent proposes changes, a vacuum regarding the other parent’s responding proposal is not ideal. Not only was counsel for Mother unable to focus her responding submissions, Ms. Ruoso was also unable to obtain instructions regarding Father’s proposal if it remained unclear.

[4] As a result, argument of the matter was adjourned to November 25, 2021, during which period Ms. Ruoso and Ms. Taylor were able to meet with the children individually and obtain their evidence regarding major changes in the schedule since September 15, 2021 and their instructions regarding their views and preferences. Both parents were provided with the opportunity to file reply evidence to Ms. Taylor’s updating Affidavit.

[5] In that context, the following materials were filed for use at this hearing:

a. Mother’s Amended Notice of Motion dated September 13, 2021;

b. Mother’s Affidavit dated September 8, 2021;

c. Father’s responding Affidavit dated September 16, 2021;

d. Affidavit of Christine Taylor, clinical investigator with the OCL, dated October 4, 2021;

e. Mother’s reply Affidavit dated October 13, 2021;

f. Father’s reply Affidavit dated October 18, 2021;

g. Father’s Notice of Motion dated November 15, 2021;

h. Affidavit of Christine Taylor dated November 19, 2021;

i. Mother’s reply Affidavit dated November 23, 2021;

j. Father’s reply Affidavit dated November 23, 2021;

k. caselaw submitted by the OCL;

l. caselaw referenced during argument by Mr. Iqbal as Father’s agent; and

m. Confirmations and Affidavits of Service.

Evidentiary Issues

[6] Both Mother’s reply Affidavit of October 13, 2021 and Father’s reply Affidavit of October 18, 2021 contain hearsay evidence that is not subject to any exception authorizing its admissibility. Also, Mother’s Affidavit contains a reference to comments made by a conference judge and is flush with opinion evidence, and Father’s Affidavit purports to describe events involving Daughter’s experiences at school as if he had been present. Further, both parents’ Affidavits submitted November 23, 2021 in response to Ms. Taylor’s Affidavit of November 19, 2021 contain fresh material that is not the proper subject of reply. The Court must vet the evidence and guard procedural fairness so as to ensure that any decisions are based upon a solid foundation. To protect the evidentiary record, I have assigned minimal weight to any hearsay evidence and have ignored Mother’s reference to judicial conference opinions. Being mindful of procedural fairness, I have disregarded any fresh evidence irrelevant to the content of Ms. Taylor’s Affidavit. The notable exception to the hearsay issue is the admissibility of Ms. Taylor’s Affidavits themselves, which evidence is both necessary and reliable in accordance with the principled exception to the hearsay rule and the public policy goal of minimizing the exposure of children to the potential trauma of involvement in contested litigation.[^1]

Undisputed Pre-Litigation History

[7] In brief, the following facts predating this litigation are undisputed:

a. the parties were married on October 10, 2008 and separated on October 1, 2018;

b. Daughter was born in September of 2007 and is currently 14 years of age;

c. Son was born in July of 2009 and is currently 12 years of age;

d. on separation, the parties initially lived separate and apart within the matrimonial home;

e. thereafter, Mother left the matrimonial home and the children remained there with Father; and

f. Father commenced this litigation in January of 2019.

[8] I note that there is no evidence regarding the parenting schedule prior to October 22, 2019. The evidence that is available would suggest a roughly equally shared parenting regime, with both children attending the time scheduled for each parent’s household.

Background Facts – Temporary Order Onward

[9] The parties are governed by the Temporary Order of Justice Walters, obtained on consent on October 22, 2019 (the “Temporary Order”), which is silent on the issue of decision-making. The Temporary Order provides that both children are to be in Mother’s care every school night from 8:00 p.m. until delivery to school the following day, and otherwise they are to be in Father’s care after school each day until 8:00 p.m. On Mother’s alternate weekends, the children are to be in her care from Saturday at 11:00 a.m. to Monday delivery to school. On Father’s alternate weekends, the children are to be in his care from Friday after school to Sunday at 8:00 p.m. Aspects of this arrangement accounted for Father’s then-appliable work schedule. Father’s work schedule changed a number of times since the Temporary Order was made; by mid-September 2021 it was such that he is now working from 2:30 p.m. to 10:30 p.m., Monday through Friday.

[10] In December of 2019, Daughter was taken by Father to the hospital following expressions of suicidal ideation. Father advised Mother of this development and of Daughter’s stated wish that Mother not participate in the meeting with the assigned social worker. Daughter reported to Ms. Taylor that she felt that Mother spent no time with her during her scheduled parenting time, choosing instead to spend time “mostly on her phone or hanging out with her own friends.” She explained that, because of this, “she reached the point of contemplating suicide due to feeling forced to attend visits at her mother’s home, despite having what she felt was a highly negative and unhealthy relationship with [Mother].” Daughter’s perception was that Mother “barged into the meeting with the social worker” against her wishes, embarrassing and angering her, which led Daughter to take a break from all contact with Mother.

[11] Neither parent described the parenting time changes between December 2019 and September 2021 in the materials, although it seems that the parties agree that they continued to have roughly equally-shared parenting, the details of which reflected of changes in their work schedules and in the children’s school participation (i.e. between online and in-person attendance). I have thus had to rely primarily upon the information from the children contained in Ms. Taylor’s Affidavits in order to get a basic understanding of the actual schedules over this period. My synthesis of the evidence is as follows[^2]:

a. Between December 2019 and late Fall 2020, only Son was attending parenting time with Mother.

b. By December of 2020, both children were with Father during the day and early evening, and with Mother overnight on school nights, with weekends alternating between households (effectively a return to the terms of the Temporary Order).

c. In late January of 2021, Daughter refused to have any significant contact with Mother and did not attend the scheduled parenting time, remaining exclusively in Father’s home. This situation continues for Daughter to date.

d. By March of 2021, Father’s shift schedule had changed such that Son spent days in online school attending from Mother’s home and was at Father’s home from 3:00 p.m. – 8:00 p.m. on school nights, with weekends continuing to alternate between households.

e. In early September of 2021, Son was at Father’s home from 8:00 a.m. to 1:30 p.m. each school day and was otherwise with Mother during the week, with weekends continuing to alternate between households.

[12] Since late September of 2021, on the basis that Father was no longer available to personally supervise the children on weekday evenings and because Mother is now available during the weekday (i.e. before 1:30 p.m.), Son has been almost exclusively in Mother’s care.

[13] Both children are now attending school in person.

Evidence of the Children

[14] Ms. Ruoso was initially assigned to this matter in January of 2020 and had individual introductory meetings with the parties and the children in late January and early March, at which point the COVID-19 situation suspended all proceedings until mid-June. After two additional individual meetings with the children (one in each of July and August 2020), she requested the assistance of a clinician to act as witness in the presentation of the children’s evidence, and Ms. Taylor was assigned. Together, Ms. Ruoso and Ms. Taylor conducted five meetings with each child, three of which took place before the disclosure meeting held May 7, 2021, one of which took place on September 15, 2021, and the last of which took place on November 17/18, 2021 in response to the Court’s need for updated information having regard to the change in the parenting schedule and the children’s views and preferences. Ms. Taylor attests that the children’s views have been consistent throughout the 17 months since Ms. Ruoso’s initial substantive meeting with them (i.e. from July 2020 to November 2021).

Daughter

[15] Over time, Daughter’s position regarding contact with Mother has become increasingly resistant. In March of 2020 she was willing to consider counselling with Mother. By July 9th, even though Daughter told Ms. Taylor[^3] that she knew Mother loves her, she “needed a break” and was still expressing anger about the events of December 2019 and Mother’s failure to make efforts to reconnect with her.

[16] By August 27, 2020, Daughter advised that she had spent one weekend in Mother’s care and there was still “a lot of conflict between [them].” Daughter expressed the following:

a. She wished to remain primarily resident with Father and spend time with Mother at her own discretion.

b. She had expressed these views to Mother, who indicated that Father was influencing her, which Daughter adamantly denied.

c. She was sick of hearing Mother speaking derogatorily about Father when on the telephone with friends.

d. She had heard Mother call her names when speaking on the telephone.

e. She wanted Mother to decrease her drinking and to stop using marijuana.

f. She did not want Mother to have access to her school records.

g. She felt that Mother “lies and tries to make herself look like a victim” and does not respect others’ views.

h. Mother would leave Daughter alone at Mother’s house but refused to allow her to be alone at Father’s home.

[17] On December 4, 2020, in addition to reiterating many of the above concerns, Daughter said:

a. She did not want to go to Mother’s home at all and would prefer to be at Father’s home even if she had to be there alone.

b. Mother told her that Father “would go to jail or be fined” if she didn’t attend the scheduled parenting time.

c. She did not believe that counselling would work to address the conflict with Mother.

[18] By March 31, 2021, Daughter no longer wanted to have any contact (even by text message) with Mother. Daughter expressed that she was seeing Son only four hours each day (at Father’s home) and missed him, but that she felt more self-confident and happier in Father’s home. She was not interested in any counselling either with Mother or on her own at that time and said that she would consider future counselling with Mother “maybe years from now.” She clearly expressed her wish that Father be the primary contact for her at school. The next day (April 1, 2021), Daughter emailed Ms. Ruoso to inform her that she had learned that Mother had discussed Daughter’s private sexuality issues with maternal grandparents, which Daughter pointed to as a further example of Mother’s inability to respect her boundaries.

[19] At the meeting on September 15, 2021, Daughter recalled the incident of December 2019 in the context of telling Ms. Taylor that Mother had contacted police to report Father on August 19, 2021. She then told Ms. Taylor that she did not want any relationship with Mother.

[20] On November 18, 2021, Daughter expressed concern about Son’s physical and mental health since his exclusive residency with Mother and said that it was very hard on her to see Son only four days per month as he is her “best friend.” Daughter described Father’s attempts to convince her to attend at Mother’s home, including up to 20 minutes spent at exchanges coaxing her to get out of his car and go into Mother’s home, but Daughter was adamant that she does not wish to have contact with Mother. Daughter expanded upon her views regarding her relationship with Mother, saying that Mother was never home before the separation and thus [Daughter] is “not stopping a relationship because there never was a relationship.”[^4] Daughter made it clear that she would not follow a court order compelling her to go to Mother’s home. She explained her suicidal ideation in December of 2019 as being caused by the Temporary Order of October 2019 which compelled her to go to Mother’s home and, that since she has stopped seeing Mother, she has had no further “bad thoughts” or mental health issues.

Son

[21] In his initial meeting with the OCL on July 17, 2020, Son described the new parenting schedule which required Daughter to attend at Mother’s home “because Dad had to work, and Mom did not agree that she could be left alone.” He said that he would like to be at Father’s home 70 – 75% of the time, and the remainder at Mother’s home.

[22] On August 27, 2020, Son said that he would prefer to be at Father’s during the day and Mother’s in the evenings, alternating weekends between the two households. He was clear that he did not want a “50/50” schedule but wanted to spend more time with Father. He again used the example of 70% with Father and 30% with Mother. He provided the following reasons for this view:

a. Unlike Mother, Father spent time with him and was not “on his phone all the time.”

b. Mother smoked marijuana, which bothered him.

c. Mother did not help him with soccer (which was a significant focus for him at that time).

d. Mother and Daughter argued during visits and he felt that Mother treated her differently and that Mother did not listen to him.

e. Mother was often late in bringing him to soccer or to Father’s home, which bothered him.

f. Mother called Father an “abusive alcoholic” whereas Father did not speak negatively about Mother.

g. He denied that Father was trying to influence his views, saying that Father “tells him to decide what he wants.”

[23] On December 4, 2020, Son spoke of Mother’s continuing negative talk about Father and described an event on December 1, 2020 when Mother refused to drop him off at Father’s home as Father had not yet returned from work, and then required Father to come and collect him from her home even though they passed Father in transit near his home. (Note that Mother denies recognizing Father’s vehicle.) Son reported feeling sad overall, rating his feelings as “3” on a scale of 0 – 10 with 0 being the saddest of states and 10 being the happiest. He told Ms. Taylor that this sadness was “because of the conflict between his parents and because his mom was being rude and had been yelling at him.” He said that he wanted to keep the current schedule (whereby he was with Father during the day until 8:00 p.m. on weekdays and sleeping at Mother’s home during the week). He had tried counselling but felt it was no longer needed.

[24] By March 11, 2021, the schedule had changed again such that Son was spending weekdays at Mother’s home and seeing Father from 3:00 p.m. – 8:00 p.m., with weekends still alternating. Son said that he did not see Father or Daughter enough and wanted to see them more. He said that his mood had improved to a “7” as “Mother does not talk about his dad anymore.” He confirmed that Father never talks about Mother. He said that if he saw Father more, his mood would improve further. His ideal schedule would be to do online school from Father’s home, go to Mother’s home around 6:00 p.m. for the night, and return to Father’s home in the morning, with weekends alternating between the two homes.

[25] On September 15, 2021, Son said that he had chosen online schooling so that he could be at Father’s during the weekday, despite Mother’s preference that he attend school in person. He expressed the belief that Mother only preferred in-person school because she “did not want him spending so much time with his father.” He did not like the new schedule, which bounced him between households at 8:00 a.m. and again at 1:30 p.m. each weekday. He missed Daughter, who he did not see at all as she was attending school in person during the day. He wanted to return to the Summer schedule and wanted to stay with Daughter at least until 6:00 p.m. each weekday. He was aware of Mother calling the police on Father because Mother had told him about it, and he had worried that Father was in jail. He again complained that Mother was always on her phone or with her friends, saying that he wanted her to spend more one-on-one time with him.

[26] Son’s situation had deteriorated significantly by the mid-adjournment meeting at Ms. Ruoso’s office on November 17, 2021. Son said that he has been at Mother’s home since late September, except on alternate weekends from Saturday at 11:00 a.m. to Sunday at 8:00 p.m. He misses Father and Daughter as he sees them only “four days per month.” He felt “really, really bad” about this schedule, which he believed was required by Mother because she does not want him to be alone with Daughter. He had told his Father his feelings but did not tell Mother because she would get upset. He said that he feels “sad sometimes” and wants to go to Father’s home. At these times, texting with Father helps. He said that he gets only a couple of hours of sleep at Mother’s home, and that his feelings were at a “1” on the scale from 0 – 10 but denied any “bad thoughts” or thoughts of self-harm. He was open to counselling but only with Father, not with Mother. He told Ms. Taylor that he is lonely at Mother’s place, as she is with her friends smoking in the backyard multiple times per week. He said that Mother promises to do things with him but does not follow through. He and Mother only eat dinner together at the table when he makes hamburgers, and otherwise he will take his dinner downstairs. At “random times,” Mother will shut off the Wi-Fi such that he cannot contact Father or Daughter. He would prefer to return to online school.

[27] Son came up with a proposed schedule and described it to Ms. Taylor as continuing the alternate weekends, and spending Monday, Wednesday and Friday in Father’s home and Tuesday and Thursday in Mother’s home. He calculated that to be 11 days with Mother and 19 days with Father each month. He was firm in stating that Father was not influencing him, and that he had come up with this schedule on his own.

Ms. Taylor’s Observations of the Children

[28] Although her role as assisting clinician does not involve the production of a report with recommendations regarding the children’s best interests, Ms. Taylor’s expertise and independence add value to her observations of the children’s comments and demeanour. She notes the following:

a. Both children are “intelligent, articulate and well-grounded young people” and she had no concerns about their ability to describe their views and preferences.

b. Daughter was VERY angry (Ms. Taylor’s emphasis) that Mother showed up and barged into the meeting with the social worker at the hospital in December of 2019.

c. Daughter was adamant that Father was not influencing her views, that she has told Mother directly that she wants any parenting time to be in accordance with her wishes, and that her perception is that Mother does not respect her views.

d. Son “often presents as a sad young man.”

e. Daughter expressed serious worry that, since the late-September shift to Son residing almost exclusively with Mother, Son has gained weight, his attitude has changed and “he is not the same person he was before the latest schedule change.”

Allegations of Parental Alienation

[29] It is important to deal squarely with Mother’s allegations that Father has alienated Daughter against her and that he openly discusses litigation issues (namely payment of Son’s soccer expenses and the involvement of police) with Son in order to negatively influence him against her. Mother also alleges that Father discussed police involvement with Daughter. She says that Daughter is aligned with Father because Daughter wants to live ungoverned in Father’s home and that Father has directly influenced Son to favour his home so that Father can avoid paying child support.

[30] On the allegation of alienation, Ms. Taylor’s evidence on behalf of the children was clear that:

a. Daughter has articulated five main reasons why she does not wish to have contact with Mother at this time:

i. ongoing conflict between Daughter and Mother when in Mother’s home (corroborated by Son);

ii. Mother’s accusations against Father (including alcoholism and allegations of abusive behaviours);

iii. Daughter’s perception of Mother’s prioritization of her own needs (including alcohol and marijuana use when in a caregiving role) over her spending time with the children;

iv. Mother’s failure to respect Daughter’s boundaries, including Mother’s disclosure of sensitive issues relating to sexuality to extended maternal family members without Daughter’s consent; and

v. Daughter’s view that, overall, Mother has no respect for her as a person.

b. Son has never discussed any aspect of child support or financial matters, and he has been consistent over the past 17 months in expressing his preference to live primarily with Father.

c. The continuation of parental conflict is causing Daughter’s views to become more entrenched and is upsetting for Son.

d. Son maintained consistency in wanting to live primarily with Father even at his most recent meeting on November 17, 2021, although he was brought to the appointment by Mother and had been almost exclusively in her care for more than two months by that date.

[31] In addition to confirming that Son has never discussed financial issues with her, Ms. Taylor’s evidence is that Son identified Mother as the source of information regarding police involvement. She attests (my emphasis):

[Son] advised of the police being called by his mother on his father. According to [Son], his mom alleged that his father had made threats towards her as she told him this. Later on that evening, [Son] was able to speak with his father and learned that father was alright. [Son] has been worried that his father was in jail.

[32] Regarding Daughter’s knowledge of police involvement, Father says that Daughter was in the home when police arrived to speak with him, and that he thought she was in her room but she was in fact listening to the conversation from the top of the staircase. It is certainly possible that Father told Daughter that Son was worried about him, however, as Son and Daughter are very close, it is equally plausible that Daughter learned about Son’s worries for Father’s well-being from Son.

[33] Mother points to emails exchanged between the parties regarding information about counselling and medical appointments for Daughter and soccer for Son as evidence of alienating behaviours by Father. She appends a text message series as evidence that Son is being encouraged by Father to disparage her. I will deal with the evidence on each of these points in turn.

[34] Daughter’s views regarding Mother’s participation in her counselling and medical appointments arose following the attendance at hospital in December of 2019. Father’s email of December 22, 2019 sets out the social worker’s name and the date of the next appointment and confirms that he has set up counselling for himself and both children for “sharing thoughts and struggles and opinions” regarding his household. He provides the next date of that counselling plan. The tone of his email is respectful. Mother’s responding email opens with: “Moving forward I would like to attend all family counselling sessions, as the mother of the family.” Mother requires Father to produce copies of “all documentation; pamphlets, psych reports, etc.” regarding Daughter. Why she would not contact the named social worker herself is unknown, but the tone of her email makes it clear that it is Father’s secretarial task to provide her with that documentation. She continues to request the contact information for the counsellor seen by Father and the children. The parties may disagree as to whether Mother is entitled to that information; that disagreement alone is not evidence of parental alienation.

[35] The emails regarding the motivational coach for Son’s soccer training start with Father asking about the division of the potential cost. The emails show that Father is questioning Mother’s intentions in response to her request for the full name of the coach, and certainly he does accuse Mother of causing Son’s “constant state of sadness” by her approach to the soccer training. However, there is no evidence that Father has made these comments to Son directly and Father does eventually provide the full name of the proposed coach. I therefore do not see how this is evidence of parental alienation of Mother by Father.

[36] A series of text messages appended as Exhibit “H” to Mother’s Affidavit dated September 8, 2021 is also referenced in support of Mother’s allegations of alienation. The messages are sent by Son to Father, and (although it is not clarified by either party in their evidence) appear to be from Son’s own mobile device. Son sends four middle-finger emojis, and Father responds by asking whether it is Mother sending the messages, to which Son replies “Ha, no” and then sends a selfie in which he is giving Father the middle finger. Father’s only response to the photo is “Wow”. Mother suggests that this is evidence that Father is alienating Son from her. In direct connection to the messages, she attests: “Father has demonstrated disrespect to me with [Son].” and that “Father regularly encourages the children to be disrespectful to me.” These text messages do not support that position.

[37] There is evidence that Father has discussed adult issues with Son, but he denies discussing police involvement or the details of support arrangements with Son.

[38] Mother asks this Court to draw further conclusions against Father’s motivation in parking away from her property at parenting exchanges and in refusing a delivery of donuts intended for the children. Father says he started parking away from Mother’s property after she made allegations against him to police, and that the children (particularly Daughter) declined the donuts, which he returned to Mother’s home after they were first delivered to his doorstep.

[39] What is clear is that Father has inappropriately discussed problems with parenting exchanges with Son, including using Son as a conduit for his angry communications intended for Mother (e.g. “If she’s 1 minute late, I’ll drop you off an hour late the next Friday. 1 hour for every minute.”). Father does not show any insight as to the negative impact that this type of toxicity will have on Son. Juvenile and angry comments, however, are not evidence of parental alienation.

[40] Appreciating that seemingly innocuous actions, taken together, can demonstrate a pattern of parental alienation, I do not see that the events described by Mother collectively demonstrate an intention by Father to alienate the children from her. For the purpose of these motions, and without binding the trial judge, I find no evidence of parental alienation.

Interim Decision-Making Generally

[41] Mother is seeking an order for joint decision-making responsibility. Father seeks sole decision-making authority as his primary position, with consultation as a secondary position provided that he has the final decision in the event of a disagreement.

[42] Mother alleges abusive behaviours by Father, which he denies. Mother states that Father was diagnosed and placed on a short-term leave from work for mood disorder and alcohol abuse in 2018 but does not allege an ongoing issue. Father denies that he is an alcoholic and attests that he stopped drinking five years ago and has been employed on a full-time basis since the Summer of 2019. Father accuses Mother of verbal and physical violence against him in the presence of the children. All of these accusations are untested, and none are supported by any corroborating evidence or documentation.

[43] Other than Daughter’s participation in reconciliation counselling with Mother and the children’s involvement with one extracurricular activity, the specific decision-making issues raised in Mother’s Amended Notice of Motion have resolved themselves. Financial information would be required for the Court to determine contribution to the out-of-pocket cost of counselling and activity expenses. Father has filed an updated Financial Statement dated October 7, 2021 but there is no evidence provided regarding Mother’s current income, nor is it clear whether either party has access to benefit coverage at this time. Division of extra-curricular expenses appears to be moot, however, as neither of the children are enrolled in activities at this time. The issue of payment for reconciliation counselling is an aspect of its commencement, addressed in detail below. Therefore, the parties are asking the Court to make a broad interim decision-making order with only one pressing issue (reconciliation counselling) currently at hand.

[44] In making a parenting order where parents are married, the sole consideration is the best interests of the children pursuant to sections 16 through 16.4 and 16.6 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 16.1(2) authorizes the making of a Temporary Order pending trial.

[45] However, many courts have warned against the making of a Temporary Order for decision-making, particularly in high-conflict cases and matters already on track for trial. In Perchaluk v. Perchaluk[^5], Justice Zisman wrote:

In considering these factors at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintaining the status quo pending trial. Temporary Orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonably acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion.

[46] In Goodyear v. Burton[^6], Justice Doyle declined to make any order regarding decision-making (then “custody”) where there was contradictory evidence regarding which parent was responsible for causing disruption to the care plans for the child (in that case, missed and altered parenting time). Her Honour expressed concern that an order for sole custody would have the effect of declaring a “winner” in the litigation and that an order for joint custody was problematic “when there may not have been a history of good communication on major issues dealing with the child.”[^7]

[47] This is a high-conflict matter that appears destined for trial. As noted, most of the specific issues to be decided had largely been addressed on consent prior to the hearing date. Therefore, other than Daughter’s participation in reconciliation counselling, which is addressed in detail below, the portions of Mother’s Amended Notice of Motion dealing with decision-making are dismissed. Similarly, as it is my conclusion that no order regarding decision-making should issue at this time, the portions of Father’s Notice of Motion dealing with decision-making are dismissed.

Reconciliation Counselling Specifically

[48] Both parents support reconciliation counselling between Mother and Daughter. On Daughter’s behalf and in accordance with her instructions, Ms. Ruoso opposes any order for such counselling.

[49] In analyzing a child’s capacity to consent to medical treatment, a return to the leading jurisprudence is essential. It is, of course, to be understood that capacity to consent to treatment includes capacity to withhold consent to treatment. One cannot argue that an individual can consent to, but not refuse, treatment.

[50] The leading case on children’s ability to consent to treatment is A.C. et al. v. Director of Child and Family Services (Manitoba)[^8]. In that case, the majority of the Supreme Court of Canada held that the provisions of Manitoba’s Child and Family Services Act which provided that the court may authorize medical treatment over the objections of the child (and/or his or her parents) did not violate sections 2(a) and 7 of the Canadian Charter of Rights and Freedoms. In doing so, the Court held that the key in the constitutional balance was in the determination of a mature minor’s ability to provide informed consent to the treatment in the context of that child’s best interests. The breadth of the best interests’ analysis rendered the law sufficiently flexible to avoid a breach of the child’s freedom of conscience or security of the person. Justice Abella wrote the majority decision, with which Chief Justice McLachlin concurred in separate reasons. Justice Binnie dissented.

[51] Justice Abella drew clear distinctions between situations of compelled medical treatment where a child’s life was endangered and those where it was not. Her Honour wrote:

[85] In the vast majority of situations where the medical treatment of a minor is at issue, his or her life or health will not be gravely endangered by the outcome of any particular treatment decision. That is why courts have determined that medical practitioners should generally be free to rely on the instructions of a young person who seems to demonstrate sufficient maturity to direct the course of his or her medical care.

[86] [In cases such as the one at bar] ... child protection authorities have concluded that medical treatment is necessary to protect [the child’s] life or health, and either the child or the child’s parents have refused to consent. In this very limited class of cases, it is the ineffability inherent in the concept of “maturity” that justifies the state’s retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. The degree of scrutiny will inevitably be most intense in cases where a treatment decision is likely to seriously endanger a child’s life or health.

[87] The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion ... In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor. If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to be necessarily to follow that the adolescent’s views ought to be respected. Such an approach clarifies that in the context of medical treatment, young people under 16 should be permitted to attempt to demonstrate that their views about a particular medical decision reflect a sufficient degree of independence of thought and maturity.

[52] Her Honour underscored that the right of mature adolescents not to be unfairly deprived of their medical decision-making autonomy required a respectful and rigorous assessment, and listed the following factors as being of potential assistance:[^9]

• What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?

• Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?

• Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?

• What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?

• Are there any existing emotional or psychiatric vulnerabilities?

• Does the adolescent’s illness or condition have an impact on his or her decision-making ability?

• Is there any relevant information from adults who know the adolescent, like teachers or doctors?

[53] In A.M. v. C.H.,[^10] the Court of Appeal upheld a trial judge’s order for a child to participate in reconciliation therapy despite the child’s reluctance to do so. With the benefit of evidence from both a clinician appointed through the Office of the Children’s Lawyer and a social worker engaged to provide reconciliation counselling, the trial judge found that the mother had alienated the child from the father and that the only option was to change primary residency. [^11] In providing an avenue for future review of the parenting situation even in the absence of a material change in circumstances, the trial judge required attendance by the child at “supportive reconciliation therapy” as a prerequisite to a fixed review date.

[54] On appeal, the mother and the child raised, among other grounds, alleged conflict between the trial judge’s order and the Health Care Consent Act. The Court of Appeal concluded that the Health Care Consent Act did not preclude a Court’s ability to order treatment contrary to a child’s stated views and preferences, and that the best interests analysis includes a review both of the primary principle of “an adolescent’s evolving capacities for autonomous decision-making” and of the factors in A.C. v. Manitoba when a child does not consent to treatment.[^12]

[55] The Court of Appeal did not walk the reader through the comparative analysis of the factors in A.C. v. Manitoba. However, it upheld the trial judge’s finding of parental alienation, which resulted in the child’s having been poisoned against the prospective treatment itself (namely reconciliation counselling with Father). The Court of Appeal concluded that the child therefore lacked the requisite maturity to refuse counselling. From this, I infer that the Court of Appeal intended the reader to appreciate that, in the context of parental alienation’s severe impact upon a child’s mental health, three of the factors from A.C. v. Manitoba were evident: (1) the existence of a condition warranting treatment (parental alienation); (2) the inherent impact of the condition upon the child’s ability to make a cogent decision regarding the treatment; and (3) the favourable outcome of the risk/benefit analysis of the treatment modality, being reconciliation therapy.[^13]

[56] Unfortunately, the recent case of Saint-Phard v. Saint-Phard[^14] does not assist in navigating medical treatment for minors because of its fatal flaw regarding judicial notice. In that case, the Court wrote:[^15] “Facts may be found by taking judicial notice. [citations omitted] Each of these cases include findings related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice.” This shows a misunderstanding of the purpose of taking judicial notice, which, according to the Supreme Court’s definitive decision in R. v. Find,[^16] is intended to avoid unnecessary litigation over facts that are:

...clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[57] Judicial notice of the facts contained in government publications are “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.” Such facts could include, for example, that there are two time zones in the Province of Ontario[^17] or that there were two deaths and 39 Intensive Care Unit admissions among Ontario children from January 15, 2020 to June 30, 2021 connected with SARS-CoV-2[^18].

[58] Judicial notice cannot be taken of expert opinion evidence. Chief Justice McLachlin for the unanimous Court in R. v. Find underscored that: “Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination.”[^19]

[59] The acceptance of government-issued statements as evidence renders the facts published by the government agency (presumed to be a source of indisputable accuracy) admissible. Public Health Ontario’s statement that two children died of SARS-CoV-2 between January 15, 2020 and June 30, 2021 is therefore admissible as fact. Public Health Ontario’s publicly accessible document is admissible as proof of the truth of its contents. In contrast, a statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion. Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is “safe and effective.” As judicial notice cannot be taken of expert opinion evidence, it is illogical to reason, as was done at paragraph 12 of Saint-Phard, that an expert’s “objections raised against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective and provides beneficial protection against the virus to those in this age group.” To compound the problem, this statement draws a conclusion that is overbroad (i.e. that the vaccine provides beneficial protection to all children and ought therefore to be received by the child in question) without having considered the comparative analysis of the factors in A.C. v. Manitoba. As a result, reliance upon this reasoning would be misguided.

[60] In submissions, I was also referred to the case of A.C. v. L.L.,[^20] in which both parents agreed that each of their three teenage children would be permitted to make his or her own decision with respect to the COVID-19 vaccination. Two of the three children chose to have it administered and one did not. While the Court made many very concerning and overly broad comments[^21], all are obiter dicta. None were relevant to the result ultimately reached, namely that both parents acknowledged each child’s maturity in choosing whether or not to participate in the medical procedure and agreed to allow each child to make his or her own choice. With the parents having agreed upon that point, the Court was no longer obligated to make any finding as to whether receipt of the COVID-19 vaccine was in the best interests of any of the children. As the parents had agreed to respect the decisions made by their children, one of whom declined the COVID-19 vaccine, is that child now in breach of the Court’s determination, at paragraph 32, that vaccination is in that child’s best interests? Of what utility is the declaration in the Order portion of the decision that “[all three] children ... shall be entitled to receive the COVID-19 vaccine”? In family litigation, unsolicited judicial opinions on parenting questions already solved by the parents serve no one. I am reminded of Justice Abella’s warning that: “[the analysis of a child’s maturity in making medical decisions] does not mean ... that the standard is a license for the indiscriminate application of judicial discretion.”[^22] Thus, while I commend the parents in A.C. v. L.L. for resolving the issue of each child’s ability to make his or her own decision, the case itself does not assist this Court.

[61] Applying the factors from A.C. v Manitoba to this matter:

a. I have held that there is no evidence of parental alienation and that Daughter has clear and cogent reasons to resist contact with Mother.

b. In the absence of parental alienation, the alleged condition to be treated, reconciliation counselling cannot be said to have much utility, but nor does it carry much risk.

c. There is no evidence that Daughter is experiencing any negative mental health outcomes as a result of the lack of contact with Mother which would be remediated by reconciliation counselling. Indeed, Ms. Ruoso notes the opposite, that Daughter appears to be flourishing in Father’s primary care. Daughter’s views on contact with Mother have been consistent, and she expresses the insight that her mental health has improved since minimizing contact with Mother.

d. Ms. Taylor attests to Daughter’s intellectual capacity to understand the situation and the potential outcomes, which is further shown by Daughter’s willingness to consider counselling with Mother at a future time.

[62] Overall, the proposed reconciliation counselling would have minimal benefit in this situation as the condition it intends to remediate, alienation of Mother by Father, does not exist. Thus, as Daughter’s mental health is not endangered by the absence of this proposed treatment, and as there is no condition that negatively influences her capacity, her views should be given optimal weight. Therefore, and appreciating that the analysis remains squarely on Daughter’s best interests guided by the factors in the Divorce Act, I find that an order compelling reconciliation counselling is not in Daughter’s best interests at this time.

Parenting Time

[63] To review, the existing Temporary Order of Madam Justice Walters of October 22, 2019 provides that both children are to be in Mother’s care every school night from 8:00 p.m. until delivery to school the following day, and otherwise they are to be in Father’s care after school each day until 8:00 p.m. On Mother’s alternate weekends, the children are to be in her care from Saturday at 11:00 a.m. to Monday delivery to school. On Father’s alternate weekends, the children are to be in his care from Friday after school to Sunday at 8:00 p.m. Daughter has refused almost all contact with Mother since late January of 2021, and, after multiple intervening schedule changes, Son is now spending only one overnight biweekly in Father’s care.

[64] Mother argues that the existing terms should remain in place while reconciliation counselling opens the door to the resumption of parenting time with Daughter. She argues that it would be detrimental to both children to parentify Daughter in making her responsible to care for Son on weekdays when Father is at work. As result, she says, Son can only be in Father’s care on alternate weekends from Saturday at 11:00 a.m. to Sunday at 8:00 p.m. The explanation given for this limitation on Father’s weekend time is an allegation, denied by Father, that Father sleeps late into the morning on Saturday after his Friday evening shift, and thus is unable to supervise the children before 11:00 a.m. on Saturday.

[65] Mother submits that she would not use the existing Temporary Order to bring a Contempt Motion against Father, should Daughter continue to refuse to comply. As Mother is alleged to have said the opposite to Daughter, namely that Father “would go to jail or be fined” if Daughter did not attend parenting time, her assurance rings hollow.

[66] Father’s position on parenting time is simple: both Son and Daughter wish to be in his primary care and the views and preferences of the children should be respected. He asks the Court to order that parenting time between Mother and the children be in his discretion, or in the alternative that parenting time between Mother and Son occur on alternate weekends and on Wednesdays after school overnight to Thursday evenings at 8:00 p.m.

[67] Regarding Daughter, Ms. Ruoso submits that it is regrettable but clear that her resistance to contact with Mother has become more entrenched over time. Daughter was initially participating in the parenting plan post-separation and continued to do so until the incident in December of 2019. Daughter contends that she was feeling suicidal in December of 2019 as a result of being forced to attend at Mother’s home by the Temporary Order in October of 2019. After a hiatus with some sporadic visits, Daughter participated briefly in the new parenting arrangements in December of 2020, but then refused all parenting time with Mother starting in January of 2021. While Daughter did not think counselling with Mother would work, she was open to it in December of 2020. By March of 2021, Daughter said she would consider counselling with Mother at some distant future time. By September of 2021, Daughter said that she no longer wanted any relationship with Mother whatsoever, and on November 18, 2021, Daughter expressed the opinion that she had never had a meaningful relationship with Mother.[^23] Ms. Ruoso pointed out that there is no evidence to suggest that Daughter is failing in Father’s care. She argued that, having regard to the deterioration over time and to Daughter’s own theory regarding her now-historic suicidal ideation in December of 2019, the court cannot ignore the potential ramifications of attempting to force contact between Mother and Daughter.

[68] With respect to Son, Ms. Ruoso points out that his views have been consistent in wishing to spend 70% – 75% of his time with Father and the remainder with Mother. She cogently explains Son’s use of these percentages as an attempt to provide parameters for problem-solving. She submits that this problem-solving culminated in Son’s suggestion of a specific schedule on November 17, 2021 as his parents have been unable to come up with a workable arrangement. She expresses concern for the uncertainty that her young client has experienced and urges the Court to see that the current situation – wherein Son sees his Father and his sister a mere four days and two nights monthly – is the furthest schedule possible from his stated preference. Ms. Ruoso notes that there is no evidence that Daughter would be parentified in caring for Son to the detriment of either child when in Father’s care; rather she argues that their time together on the evenings when Father is at work is a normal sibling situation for children aged 14 and 12.

[69] Ms. Ruoso submits that the children’s views are cohesive and meaningfully expressed and, having regard to their ages, ought to be given significant weight in determining a parenting schedule that is in their best interests.

[70] The 2021 decision of S.S. v. R.S.[^24] provides an excellent and broad-ranging analysis of the importance of hearing children’s voices in the context of litigation that directly impacts their lives and futures. That case was focused on a potential change in the interim parenting schedule. Justice Mandhane’s three-stage analysis for determining interim parenting orders in accordance with the best interests of children as required by the Divorce Act provides a solid frame of reference. Her Honour’s stages, with which I agree, are:[^25]

• First, I consider the current circumstances of the children, including any exposure to family violence;

• Second, I determine the children’s best interests given their unique circumstances; and

• Third, bearing in mind the children’s circumstances and their best interests, I consider the proper terms of any parenting order.

Daughter

[71] Ms. Ruoso submits that Daughter has made it clear that she will not follow any Order that compels her to spend time with Mother. This pronouncement by Daughter is part of her unique circumstances and relates to Mother’s ability to address her needs. The evidence is that Father has made significant efforts to encourage Daughter to attend parenting time with Mother, which shows his willingness to support that relationship.

[72] The Temporary Order must be altered to reflect the reality of this family’s situation and to ensure that there is no future confusion. Having assessed Daughter’s best interests given her unique circumstances, and acknowledging Daughter’s clearly-articulated reasons for her unwillingness to see Mother at this time, I find that an Order providing for parenting time between Mother and Daughter in Daughter’s discretion is the most appropriate.

Son

[73] It is undisputed that Son has been in Mother’s primary care, seeing Father and Daughter on alternate Saturdays overnight, for approximately 2 ½ months. Based on the following facts, I find that this plan is not in Son’s best interests having regard to the applicable factors set out at section 16(3) of the Divorce Act:

• Father is better able to meet Son’s emotional and developmental needs as shown by Mother’s lack of insight into the impact that her hyper-protective position vis-à-vis Son spending time alone with Daughter is having upon Son’s emotional state.

• Son has strong bonds with both parents and with Daughter and wishes to maintain those bonds.

• Father has demonstrated a greater willingness to support Son’s relationship with Mother than Mother has done.

• It appears undisputed that the status quo for Son since separation has been roughly equally shared parenting time between the two households, with fluctuations over time.

• Son has clearly stated his preference to reside primarily with Father and has generated his own suggested schedule which should not in any way minimize his meaningful contact with Mother.

• Son does not have any recollection of exposure to family violence and is happiest when Mother does not allege abuse by Father within his presence or hearing. There is no evidence of current family violence (although certainly this is a high conflict matter).

[74] I find that it is in Son’s best interests to reside primarily with Father and to spend Tuesdays and Thursdays overnight and alternate weekends in Mother’s care. Mother will provide all transportation for Son to and from her parenting time, collecting him at school when it is in session and from Father’s home at 5:00 p.m. when it is not. Mother’s alternate weekends will conclude at 5:00 p.m. on Sundays when she will deliver Son to Father’s home.

[75] With respect to the upcoming school vacation break and Christmas holiday, having regard to the amount of time that Son has spent almost exclusively in Mother’s care since late September, additional parenting time will not be ordered but may be agreed upon between the parties. For clarity, Son will be in Mother’s care for the weekend of Friday, December 24, 2021 through to Sunday, December 26, 2021. Unless otherwise agreed upon between the parties, the regular schedule set out above will continue.

[76] Finally, having regard to the children’s concerns about Mother’s use of alcohol and marijuana while in a caregiving role, and as Father’s evidence is that he does not consume either substance at all, I am ordering that neither party shall consume alcohol or marijuana while caring for Son.

Order

[77] Having regard to all of the foregoing, the following Temporary Order shall issue on the terms as set out below and in the form signed today:

1. The child, Daughter, shall reside primarily with Father, and shall have such contact with Mother as is in the child’s own discretion as to method, frequency and duration.

2. The child, Son, shall reside primarily with Father, and shall be in his primary care commencing Wednesday, December 22, 2021 at 5:00 p.m. when Mother shall deliver Son to Father’s residence.

3. The child, Son, shall have the following parenting time in Mother’s care:

a. commencing Tuesday, December 21, 2021 overnight to Wednesday, December 22, 2021, and every Tuesday overnight thereafter;

b. commencing Thursday, December 23, 2021 overnight to Friday, December 24, 2021 and every Thursday overnight thereafter;

c. when school is in session, parenting time exchanges shall be at the end of the school day;

d. when school is not in session, parenting time exchanges shall be at 5:00 p.m.;

e. commencing Friday, December 24, 2021, and alternate weekends thereafter, from Friday after school or at 5:00 p.m., as applicable, through to Sunday at 5:00 p.m.; and

f. such further and other times as the parties may agree upon in advance in writing.

4. Transportation for Son’s parenting time shall be on the following terms:

a. when school is in session, the parent having Son in his or her care at the commencement of the school day shall be responsible for delivering him to school;

b. when school is in session, the parent scheduled to have Son in his or her care at the conclusion of the school day shall be responsible for collecting him from school;

c. when school is not in session, the parenting exchange time shall be 5:00 p.m., and Mother shall provide all transportation to and from Father’s home;

d. for clarity, on Sundays at the conclusion of her alternate weekend parenting time, Mother shall deliver Son to Father’s home at 5:00 p.m.; and

e. such adjustments to transportation as the parties may agree upon in advance in writing.

5. Neither party shall consume alcohol or marijuana when in a care-giving role to Son.

6. Matter is to be scheduled for Settlement Conference through the Trial Co-ordination Office.

7. Costs submissions regarding this hearing are to be addressed as follows:

a. The Applicant Father shall serve and submit to the court written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and copies of any Offers to Settle by January 10, 2022.

b. The Respondent Mother shall serve and submit to the court responding submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and copies of any Offers to Settle by January 17, 2022.

c. The Applicant Father shall serve and submit to the court any reply submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) by January 21, 2022.

d. There shall be no extensions to these deadlines. If a party fails to meet these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

e. Submissions are to be directed to the following legal assistants: Mona.Goodwin@ontario.ca and Kelly.Flanders@ontario.ca as well as Kitchener.SCJJA@ontario.ca. It is imperative that counsel indicate in the subject line of the covering email: (1) the court file number; (2) that these are costs submissions; and (3) that they are being sent to my attention.

f. The parties shall further ensure their costs submissions are filed in accordance with the Notice to the Profession in Central South Region re: Electronic Filing of Court Documents issued December 1, 2020 effective December 2, 2020.

8. All other issues raised in Mother’s Amended Notice of Motion dated September 13, 2021 and in Father’s Notice of Motion dated November 15, 2021 are dismissed.

J. BREITHAUPT SMITH, J.

Date: December 20, 2021

[^1]: See R. v. Khan, [1990] 2 S.C.R. 531, 1990 CanLII 77 (SCC) at pp 546 para. h – 547 para. c.

[^2]: Note that this is provided only for background context; no aspect of my decision turns on this chronology, and thus it need not be exactly accurate.

[^3]: Of course, Ms. Ruoso was present at all meetings with each of her child clients, but as the evidence is presented through Ms. Taylor, for brevity I refer only to her in these Reasons in referencing the children’s statements.

[^4]: It is important to pause here to note that I am not accepting Daughter’s comments in this regard as determinative. I presume that there was a natural Mother-Daughter relationship before separation.

[^5]: 2012 ONCJ 525 at paragraph 28.

[^6]: 2016 ONSC 4583.

[^7]: Goodyear v. Burton, supra note 6 at paragraphs 44; 46; and 48.

[^8]: 2009 SCC 30, hereinafter “A.C. v Manitoba”.

[^9]: A.C. v. Manitoba, supra, note 8 at paragraph 96.

[^10]: A.M. v. C.H., 2019 ONCA 764.

[^11]: It is important to note that the Court of Appeal rejected the suggestion that expert opinion evidence was required in order to determine the presence of parental alienation. See A.M. v. C.H., supra, note 10 at paragraphs 35 and 36, confirming a similar appellate result on this point in Fiorito v. Wiggins, 2015 ONCA 729.

[^12]: A.M. v. C.H., supra, note 10 at paragraphs 67 – 72.

[^13]: On this last factor, I note here the Court of Appeal’s reference to the Research Paper by Nicholas C. Bala and Katie Hunter entitled “Children Resisting Contact & Parental Alienation: Context, Challenges & Recent Ontario Cases” in connection with the ameliorative effects of reconciliation therapy in parental alienation cases.

[^14]: 2021 ONSC 6910, hereinafter “Saint-Phard”.

[^15]: Saint-Phard, supra, note 14 at paragraph 5.

[^16]: R. v. Find, 2001 SCC 32, [2001] 1 SCR 863 at paragraph 48.

[^17]: https://www.ontario.ca/page/about-ontario, retrieved December 19, 2021.

[^18]: https://www.publichealthontario.ca/-/media/documents/ncov/epi/2020/05/covid-19-epi-infection-children.pdf, Table 2, page 11 of 23, retrieved December 19, 2021.

[^19]: R. v. Find, supra note 16 at paragraph 49.

[^20]: 2021 ONSC 6530, also relied upon in Saint-Phard.

[^21]: Supra, note 20, for example: Paragraph 22: “It is understandable that governments may try the carrot before they have recourse to the stick.” Paragraph 28: “Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.” Paragraph 30 – 31: “Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligible children to get vaccinated before they attend school in person. The respondent mother has adduced no evidence to contradict this general presumption or displace its application to [the three children].”

[^22]: A.C. v Manitoba, supra, note 8 at paragraphs 90 – 91.

[^23]: As noted above, I am not taking Daughter’s comments as determinative of the question of the quality of the Mother-Daughter relationship. However, it is important to appreciate the deterioration of the image of that relationship in Daughter’s own mind, for reasons that Daughter herself has articulated, as part of the best interests analysis.

[^24]: S.S. v. R.S., 2021 ONSC 2137.

[^25]: S.S. v. R.S., supra note 14 at paragraph 52.