COURT FILE NO.: FS-19-00013549-0000

DATE: 20211102

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.Z.

Applicant

– and –

H.H.

Respondent

Du, Heng (Pandora), for the Applicant

Self-Represented. Respondent

HEARD: November 2, 2021

Papageorgiou J.

REASONS FOR DECISION

Nature of the Motion

[1] The Respondent H.H. (the “Father”) brings a motion for an order that the child, O.T.H. (“O”), be enrolled in therapy with Families in Transition for the purpose of reunifying with the Father, and enforcement of the parenting schedule set out in Justice Kiteley’s Order dated August 20, 2020.

[2] There are two children of the marriage, O, as well as her brother T.H. (“T”). O lives with the Applicant M.Z (Mother) and T lives with the Respondent H.H. (the “Father”). Justice Kiteley’s Order provided that on alternating weekends, the children would be together at either the Mother’s or the Father’s.

[3] The Mother opposes this motion on the basis that the Father has not proven either that the Mother is actively engaged in alienation or that the Child is in need of any therapy for any reason. She says that she has complied with Justice Kiteley’s order. She drives O to her Father’s but O refuses to go into the house because of O’s concerns about COVID-19. As well, she says that O has expressed concerns about going to the Father’s because T has behavioral issues which disrupt her sleep.

[4] For the reasons that follow I am adjourning the Father’s motion for police enforcement and amending the consent parenting order made by Justice Kiteley to provide a schedule which does not immediately have any overnight visits, with a return date of March 24, 2022 at 10:00 to review the status of the matter and consider whether any further alterations should be made.

Background

[5] The Mother and Father were married on December 20, 2006 and separated in January 2018 but remained living separate and apart in the matrimonial home until July 24, 2019 when an incident occurred where the Mother was removed from the home and a no-contact order was made. This incident began when the Mother took T’s Xbox away and he had a tantrum which led to damage in the matrimonial home; the home had been sold and the closing was pending.

[6] Both parties disagree on what happened and I am in no position to resolve that issue on the materials before me.

[7] It is also uncontradicted that T has behavioral issues. He has challenges managing his emotions although a recent psychiatric assessment indicates there is no need for a formal diagnosis.

[8] The Father has participated in training/counseling to deal with T’s behavior including services from Chinese Family Service of Ontario, CAMH (with and without T’s participation), Families in Transition, Big Brother and Big Sister.

[9] On November 19, 2019, a temporary without prejudice co-parenting plan was agreed to at a first appearance at the Ontario Court of Justice whereby the Mother and Father had alternate weekends with each child not living with them from Saturday at 9:00 am to Sunday at 6:00 pm. On June 22, 2020, the parties agreed to a summer schedule giving equal time to both parents but the children rarely followed this arrangement.

[10] Thereafter, on August 20, 2020, Justice Kiteley ordered that the two children spend alternative weekends with one parent (from Friday after school until Sunday at 7 pm) and equal sharing of summer and winter vacations.

[11] However, as noted above, T refuses to stay overnight with the Mother and O refuses to enter the Father’s home or stay overnight.

[12] The Father requests that the parenting order with respect to O be enforced but that T be permitted to make his own decisions about spending time with the Mother. The Mother has brought no motion and is content to allow T to make his own decisions about parenting time with her.

OCL Reports

[13] The Office of the Children’s Lawyer has prepared two reports as follows:

a. A completed assessment and report dated October 21, 2020; and

b. A Voice of the Child report for O dated September 21, 2021.

[14] The October 21, 2020 OCL report explains the children’s reasons for not spending court ordered time with the other parent as follows:

More often, T stayed with his father and spent a few days a week at his mother’s home because his father’s house had video games and was close to his friends. O mostly stayed with her mother and spent a few days a week at her father’s home because she did activities with Ms. Z and her friends and said her father’s home could be tense and “boring.”

[15] This report also documents conflicting narratives from both parents as to what has occurred. The Mother told the OCL investigator that the Father is physically aggressive, controlling of her and that he denigrates her parenting abilities and her education. The Father denies this and asserts that it is the Mother who has problems controlling her behavior and actions. I am unable to resolve these competing narratives on this written record.

[16] What is clear is that both children have been exposed to the Mother and Father’s conflict and both parents have different parenting styles which may be impacting the children.

[17] The Mother provides the children with rules and limits regarding computer games, bed-times etc., but the Father has few boundaries. In that regard, the Father advised the OCL that he is very accommodating with T that he permits T 7 hours of video games in a day plus one hour of reading and exercise.

[18] In the end the OCL clinician concluded that the Mother and Father have different parenting styles but that both of them love the children and have been able to provide a stable home where their needs are met. The OCL clinician recommended that O continue to live with the Mother and that T continue to live with the Father, but that parenting time occur in accordance with the August 20, 2020 Order. The clinician also recommended that the Mother and Father consider attending a program like Families in Transition to better understand the relationship breakdown and learn how to manage parenting the children.

Counselling and Parental Alienation

[19] Parental alienation is defined as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behavior and out of sync with the previous parent-child relationship”: Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097, at para. 3, citing Barbara Jo Fidler and Nicholas Bala “Guest Editors’ Introduction to Special Issue on Alienated Children in Divorce and Separation: Emerging Approaches for Families and Courts” (2010) 48:1 Fam. Ct. Rev. 6 at 6. It can occur as a mere “side-effect of the breakdown of a relationship, but can also occur because of deliberate actions, both direct and indirect, on the part of a parent”: Williamson v. Williamson, 2016 BCCA 87, 395 D.L.R. (4th) 510 (“Williamson”), at para. 39.

[20] Some courts have concluded that parental alienation is such a serious allegation that expert evidence is required to support (1) a finding of alienation on the part of either party; and (2) responses, including a family reunification program, were in the best interests of the children. In Williamson, at paras. 47-48, the Court found:

[47] Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties. Further, as described above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a long-term impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supported with admissible expert evidence. […]

[48] Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and to support that the FRRP was in the best interests of the children.

[21] Orders for reunification therapy are to be made sparingly, there must be compelling evidence that the therapy will be beneficial and there must be a detailed proposal identifying the proposed counsellor and what is expected: Testani v. Haughton, 2016 ONSC 5827, at para. 18.

[22] There is no persuasive evidence that the Mother has been involved in alienating O from the Father.

[23] In the September 21, 2021 Voice of the Child report O expressed her view that she was comfortable spending time with the Father but since the pandemic did not want to spend time in his home because of concerns about the pandemic. She would like to resume overnight parenting once the pandemic is over.

[24] At the Father’s observation visit before the OCL clinician, O was very pleased to be with the Father. She hugged him, sat on the couch with him, they laughed and chatted.

[25] She also indicated that the Mother encourages her to spend time with the Father and supports that if that is what O wants. She assured that the Mother does not negatively influence her decisions about the Father’s parenting time. She also indicated that if and when the COVID 19 concerns are eliminated, she will be open to spending time with the Father in his home and resume overnight visits.

[26] While the court has a discretion to order that a parent take a child to counselling or therapy, there is no evidence before me that O is in need of any therapy. Two OCL reports describe her as happy, well-adjusted, thoughtful, and doing well: Leelaratna v. Leeleratna, 2018 ONSC 5983 at para 45.

[27] Therefore, the Father’s motion in this regard is dismissed.

Parenting time

[28] The best interests of the child are paramount and the Children’s Law Reform Act solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”)

[29] The CLRA also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: CLRA, s. 24(5). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

[30] As set out in Ferreira v Ferreira, 2015 ONSC 3602:

31. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 52807 (ON CJ), [2003] O.J. No. 2946.

32 A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont.Ct. (Gen. Div.)

[31] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira at para 13, CLRA, s. 24(2)

[32] Other relevant considerations contained in the CLRA include:

Factors

24(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

[33] As well, subsection 24(2)(b) of the CLRA provides that in determining the best interest of the child a court shall consider all of the child’s needs and circumstances including “the child’s views and preferences, if they can be reasonably ascertained. See also section 61(1) of the CLRA and section 16(3)(c) of the Divorce Act.

[34] Under article 12 of the United Nations Convention on the Rights of the Child, children who are capable of forming their own views have the right to participate in a meaningful way in decisions that affect their lives and parenting decisions. The weight to be given to the children’s views will generally increase with their age and maturity.

[35] As set out by Justice Kraft, in White v. Kozun, 2021 ONSC 41 at para 174, no single criterion is paramount and “the weighing of each criterion will depend on the circumstances of the particular child.”

[36] In this case there have already been parenting Orders made such that the Father would have parenting time every other weekend. This parenting time has not consistently happened.

[37] The Mother has brought O to the Father’s but she either waits until O wishes to leave or picks her up if O telephones and asks to be picked up. O stated that when she is “bored” or the Father is being “rude” or tells her what to do, she calls the Mother who always picks her up.

[38] Although a child’s wishes should be taken into account by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. Ontario courts have consistently held that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order.”: Godard v. Godard, 2015 ONCA 568, paras 17-21.

[39] An order for access in the family law context requires the principal residential parent to not simply accommodate the access, but to facilitate the access. Where a custodial parent allowed children to refuse to go with the other parent and did little by way of consequences, the custodial parent had failed to facilitate access and a finding of contempt of court was made: V.(S.) v. I. (C.T.) [2009] O.J. No. 816.

[40] In Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551, para 14 the parties had a consent Order regarding access by the father to the two children. The mother withheld access from the father by not ensuring that one of the children kept up her counselling and she did not ensure that the child went with the father for access visits on his weekend or on his mid-week access visits. The father sought to find the mother in contempt of court. The court granted the motion and held that the mother had not met the standard for facilitating access. The court ordered the mother to undergo counselling in an attempt to prevent further similar behavior.

[41] In my view, taking into account O’s age (10), the fact that she loves her father, appears to want to spend time with him and the Father’s ability and willingness to care for O, it is in her interests to have a relationship and bond with the Father which can be facilitated by parenting time.

[42] It is also in O’s interest to have a relationship with T. The Father provided evidence and pictures which support that T and O were very close but are now estranged because neither child will follow the parenting order.

[43] While O has expressed concerns about her brother’s behaviour towards her, there is no evidence he has ever harmed her or even come close to doing so. Sibling conflict is not unusual. The OCL clinician was aware of the conflict between T and O when it made its first set of recommendations which included that O have parenting time with the Father every other weekend overnight. The clinician, who observed O and T together, did not conclude that the conflict between O and T should prevent the Father’s parenting time. Indeed, T appears to spend most of his time wearing headphones and playing video games.

[44] As well, the Father presently has a four-bedroom house which means that O will have her own bedroom. The one incident which prevented her from sleeping when the Father and T fought occurred when they were sharing a bedroom.

[45] The main reason why O does not stay at her Father’s is her concerns about COVID-19. She says that the Father and T often do not wear a mask which bothers her and as a result she prefers to see the Father outdoors. At this time, she does not want to see him more than a few times a week and does not wish to go into his home.

[46] Her concerns about COVID-19 are legitimate, but that does not mean that she should be dictating the Father’s parental time or that her decision to restrict her parenting time with the Father on this basis is in her best interests. The Father is a government employee, follows all protocols and permitting her to refuse parenting time on this basis may actually be exacerbating her distress about the pandemic; it is not healthy for her to be so fearful even when the Father is taking necessary precautions and schools are open.

[47] O is ten years old, very intelligent, and has the impression that she may make her own decisions regarding parenting time with her Father as she pleases. In my view, the Mother has not done enough to facilitate the Court ordered parenting time which should be enforced in the same way that a parent would require a child to attend school or brush their teeth.

[48] Both of these parents are acceding their parental authority to their children which is not in the children’s best interests, although the only issue before me is the Father’s parenting time with O.

[49] Given that alternating weekends have not yet worked pursuant to the parties’ consent arrangement, and given O’s views and preferences I will be making a parenting Order in respect of O which gradually increases the Father’s parenting time from daily visits on the weekend to one overnight visit and ultimately to a second overnight visit in the hopes that this will make the transition for her easier.

[50] I emphasize that the Mother must comply with this Order even if T is not presently attending his parenting time with her. The Mother accepts T’s decision and he is older. If she wishes enforcement of Justice Kiteley’s Order regarding T, then she must bring a motion. It is not a reason to refuse to facilitate O’s parenting time.

[51] As such I am amending Justice Kiteley’s order with respect to the Father’s parenting time with O as follows:

Sunday November 7, 2021: 10:00 am to 2:00 pm

Saturday November 13, 2021: 10:00 am to 2:00 pm

Saturday November 20, 2021: 10:00 am to 2:00 pm

Saturday November 27, 2021: 10:00 am to 3:00 pm

Saturday November December 4, 2021: 10:00 am to 3:00 pm

Saturday December 11, 2021: 10:00 am to 5:00 pm

Saturday December 25, 2021: 2:00 pm to 7:00 pm. (In the event that the parties celebrate Christmas, this will provide each of them with time on Christmas, one for lunch and one for dinner)

Saturday January 1, 2022: 10:00 am to 5:00 pm (This will provide the Mother with New Years’ eve and the Father with the bulk of New Years’ Day)

Saturday January 15, 2022: 10:00 am to Sunday January 16, 2022 at 10:00 am

Saturday February 5, 2022: 10:00 am to Sunday February 6, 2022 at 10:00 am

Saturday February 19, 2022: 10:00 am to Sunday February 20, 2022 at 10:00 am

Saturday March 5, 2022: 10:00 am to Sunday March 6, 2022 at 6:00 pm.

Every other weekend after March 5, 2022 from Saturdays at 10:00 am to 6:00 pm.

Further Motion Date

[52] The parties shall attend before a case conference on Friday March 11, 2022 to review how these arrangements are working and I am also booking a further motion date of March 24, 2022 for one hour at 10:00 am before me in the event the issue of parenting time is still not resolved and a further motion is necessary.

Police Enforcement

[53] The Father has requested an Order for police enforcement. I am not satisfied that at this stage such an Order is required. It could be quite traumatic for O to be retrieved by the police for her parenting time with the Father and the Mother should be given an opportunity to facilitate this before such a drastic order is made. I am adjourning the motion for police enforcement to the March 24, 2022 motion date.

Striking of Exhibits and Paragraphs of the Father’s Affidavit

[54] I am also striking Exhibit J from the Father’s affidavit dated October 14, 2021 as he failed to comply with D.P. Wagg, 2004 39048 (ON CA), [2004] O.J. No. 2053 at para 7 which provides a screening procedure to determine whether Crown disclosure provided to a defendant in a criminal proceeding should be disclosable in civil proceedings.

[55] I am also striking paragraph 47 and Exhibit L of his affidavit as it mentions the terms of an offer to settle which Rule 18(8) provides shall not be disclosed until the Judge has dealt with all the issues in dispute except costs.

Costs

[56] The Mother has requested $2,500 in costs.

[57] Modern costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules (the “Rules”): Matina v. Matina, 2018 ONCA 867 at para 10, Probst v. Shah, 2020 ONSC 2290, at para 2; Serra v. Serra 2009 ONCA 395.

[58] A costs award should always reflect what is a fair and reasonable amount to be paid to the successful party: Oduwole v. Mosses 2016 ONCJ 653.

“Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”: Beaver v Hill, 2018 ONCA 840 at para 12; Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521 (OCA) at paras 24, 26 and 37-38. Although the Family Law Rules do provide for an entitlement to full recovery costs in specific circumstances, including bad faith: r. 24(8), “there is no provision in the Family Law Rules that provides for a general approach of ‘close to full recovery’ costs: Beaver. Neither is there a presumptive entitlement to substantial indemnity costs; as the Ontario Court of Appeal commented in Serra v. Serra, 2009 ONCA 395 at para 8, family costs rules are designed to “partially indemnify successful litigants for the cost of litigation.” The Court of Appeal also confirmed in M.(C.A.) v. M.(D.) 2003 18880 (ON CA), 2003 CarswellOnt 3606 (OCA) at para 43 and Berta v. Berta, 2015 CarswellOnt 19550 (OCA) at para 94 that the overriding consideration in family law cases is “reasonableness of the costs sought” and actual costs are not determinative.

[59] Further, because the Rules do not mention any scale of costs, judges are not confined to awarding costs on either a partial indemnity or substantial indemnity basis.

[60] Pursuant to r. 24(12), the Court must also consider the reasonableness and the proportionality of a number of factors as they relate to the importance and complexity of the issues, including each party’s behaviour, the time spent by each party, any written offers to settle, any legal fees, including the number of lawyers and their rates, any expert witness fees, any expenses paid or payable and any other matter: r. 24(1) and r. 24(12), Belair v. Bourgan, 2019 ONSC 2170 at para 37.

[61] In my view, this is an appropriate case for a no costs order for this motion. Both parties achieved some success. They are both dealing with a difficult situation and non-compliant children. In all the circumstances I have not found either of the parties’ unreasonable.

Papageorgiou J.

Released: November 2, 2021

COURT FILE NO.: FS-19-00013549-0000

DATE: 20211102

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.Z.

Applicant

– and –

H.H.

Respondent

REASONS FOR JUDGMENT

Papageorgiou J.

Released: November 2, 2021