Court File and Parties

COURT FILE NO.: FC-17-2493 DATE: 2022/02/11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J. L., Applicant AND D. L., Respondent

BEFORE: Justice Engelking

COUNSEL: Kellie Stewart, for the Applicant Jack Pantalone, for the Respondent

HEARD: September 29, October 1, 4-7 and 12, 2021

Reasons for Decision

[1] Justice MacLeod recently indicated at paragraph 3 of M.(O) v. K.(S)., 2021 ONSC 569:

[3] Court proceedings take place in public and court decisions are published. By submitting a dispute for adjudication in a public forum, the parties surrender a certain amount of privacy. But the court must balance the open court principle against the potential harm if personal data of individual litigants is gratuitously placed in the public domain. The child who is the subject of the litigation, but is not herself a party, is entitled to privacy. For this reason, I have referred to the child and the litigants only by initials. My reasons also avoid reference to personal data such as birth dates or the specific addresses of property. Obviously, this information was part of the evidence and forms part of the record. I trust it is evident that use of initials or generic terms for the parties in place of their names is to preserve privacy and is not a sign of disinterest or disrespect.

[2] I too have chosen to refer to the children and litigants in this case by their initials and have avoided reference to personal data where possible, for the same reasons as articulated by MacLeod J.

[3] A trial of this matter was before the court in November of 2020. On the sixth of the scheduled ten-day trial, the parties signed Minutes of Settlement providing as follows with respect to the parenting issues:

1. The parties shall engage in family therapy (reunification therapy) with a counselor local to Ottawa for the purposes of assisting the family through relationship counseling and reunification therapy, individual counseling, etc., as may be directed by the therapist.
2. The mother shall ensure that the children attend the counseling sessions with their father, and she shall arrange for their transportation to the sessions.
3. The reunification counseling shall be at least once weekly, or more frequently as recommended by the reunification counselor.
4. The therapist shall report to counsel with a brief update every two weeks, and to the court every 2 months or as may be otherwise requested by either party.
5. The father shall have contact and/or access to the children outside of the counseling, as recommended by the reunification counselor and/or in accordance with the children’s wishers.
6. Major decisions relating to the children shall be worked on through the therapist, if the parties are not able to decide between themselves with the assistance of counsel.
7. The parties agree that the issue of the children’s relationship with their paternal grandmother and contact with her shall be explored through the reunification therapy, and that the children shall have contact with her in accordance with their issues.
8. Justice Shelston shall remain the case management judge, and either party may request a return to a conference (including settlement conference) with Justice Shelston on a written submission, and he shall have jurisdiction to make required orders, including an order for an expedited trial. Despite the timelines set out below, Justice Shelston is not restricted on timing should an issue arise prior to June 2021 which needs determination.
9. Justice Engelking shall remain seized of the motions/trial if the parties are referred to such.

[4] Outstanding issues of retroactive child support and section 7/extraordinary or other expenses were to be dealt with in writing and are addressed in separate Reasons for Decision.

[5] On December 7, 2020, I released an endorsement providing that a final order was to go as per the Minutes of Settlement filed.

[6] On December 11, 2020, I released a further endorsement amending the Minutes on consent of the parties as follows for the purposes of my order:

1. A new paragraph #8 shall be inserted which reads: “Failure to follow through with reunification counselling as set out above and/or unsuccessful reunification constitutes a material change of circumstances for which a Motion to Change may be commenced”;
2. The following paragraphs shall be renumbered as #9 through #14; and,
3. The new paragraph #9 shall have the words “upon a Motion to Change having been initiated,” inserted immediately after the word “including” and immediately before the words “an order for an expedited trial”.

[7] This is the Respondent, Mr. L.’s Motion to Change brought pursuant to my December 11, 2020 endorsement, in which he seeks an order for temporary decision-making authority with concomitant orders, for the purpose of the family participating in the Family Bridges program.

[8] The Applicant, Ms. L. seeks to have Mr. L.’s MTC dismissed, and she also seeks an order for sole decision-making authority over the boys.

[9] In this trial, the parties were relying on the evidence already led at the trial in November of 2020, as well as the evidence given during the hearing of the MTC.

[10] For the reasons given below, I decline to grant the order requested by Mr. L., and grant that requested by Ms. L.

Voir Dire

[11] At the commencement of the trial, a voir dire was conducted as to whether Howard Hurwitz would be permitted to testify, and if so, to what extent. I provided the parties with the following oral decision on that voir dire:

Mr. L. seeks to have Mr. Hurwitz provide his expert opinion on 1) the indicators of alienation; 2) treatment options for same; and 3) damage to children who have experienced alienation and the “short-term pain” of a structured treatment program. Mr. L. also seeks to have Mr. Hurwitz provided factual evidence in regard to the program known as “Families Moving Forward”, and its’ similarities to the Family Bridges program.

Mr. L. submits that if permitted to testify as an expert in this proceeding, Mr. Hurwitz’s evidence will only be duplicative to that of Dr. Worenklien on the indicators of alienation. He seeks to have him provide opinion evidence generally and not in specific relation to this case, as Mr. Hurwitz did not conduct an assessment nor write a report. Mr. L. submits that as there are no notes and records for Mr. Hurwitz to release, no delay will be caused by allowing him to testify. Mr. L. submits further that Mr. Hurwitz’s will-say statement, which was ordered to be produced by Justice Labrosse at the Trial Management Conference and which was provided to Ms. L. on September 21, 2021, can be substituted for the “report” required by the Family Law Rules, specifically Rule 20.2 (2). He submits further that the court retains some flexibility to permit Mr. Hurwitz to provide an expert opinion based on Rule 20.2(6), which provides: “Unless a judge orders otherwise, a litigation expert may not testify about an issue at trial unless the substance of the testimony is set out in a report that meets the requirements of this rule.” Mr. L. submits firstly that the words “unless a judge orders otherwise”, suggests such a discretion exists, and secondly that Mr. Hurwitz’s will-say statement sets out the substance of the testimony, and it should, therefore, be permitted. Finally, Mr. L. submits that there is no prejudice to Ms. L. to have Mr. Hurwitz provide an expert opinion; rather, it will be helpful to the court, particularly regarding the “details of the structured therapeutic program” he is requesting be ordered.

Ms. L. opposes Mr. L. being able to call Mr. Hurwitz as an expert to give opinion evidence in this case. She does not dispute Mr. Hurwitz’s expertise in cases for which he has actually done an assessment or provided a report. Her position, however, is that he does not fall into any of the categories outlined in Rule 20.2(2) as to whom is an expert.

Indeed, Rule 20.2 (1) identifies three types of experts to which the Rule applies, a “joint litigation expert”, a “litigation expert” and a “participant expert”. Mr. Hurwitz is clearly not a joint litigation expert, having only been retained by Mr. L. on a limited scope retainer. Dr. Worenklein is, in fact, the joint litigation expert in this case, and has already been qualified to provide his expert opinion.

Ms. L. disputes that Mr. Hurwitz is a litigation expert as well, having neither conducted an assessment nor produced a report in respect of this case. In her submission, he was not “engaged to provide expert opinion evidence”. She further submits that he is not a participant expert, having not been involved with this family in any way. In other words, he has not observed or participated in the events in issue as contemplated by the definition of a participant expert in Rule 20.2(1).

I agree that Mr. Hurwitz does not fall within the definition of either a joint litigation expert or a participant expert as per Rule 20.2(1). Although Rule 20.2(6) does provide the court with discretion to permit certain testimony, it refers specifically to a “litigation expert”. The question then becomes whether Mr. Hurwitz was engaged to provide expert opinion evidence, such that I may exercise my discretion under Rule 20.2(6) to allow him to testify in any event.

Rule 20.2(2) is very clear about what must minimally be contained in a report filed by an expert, and the time frame by which such a report must be filed. Neither the timeframe nor the minimum requirements have been met in this case. My particular concern is with respect to the third requirement – the nature of the opinion being sought and each issue in the case to which the opinion relates. Similarly, pursuant to the 6th criteria, the expert’s opinion is to be based in factual assumptions, ones that presumably will be proven at trial. Mr. L. proposes that Mr. Hurwitz provide opinion evidence of a general nature. That does not, in my view, attend to the requirements that such evidence relate to specific issues in the trial, or that they be based on proven factual assumptions in the case. While I am reasonably certain that Mr. Hurwitz’s expertise on alienation in general would be interesting and informative, I do not see how it will assist the court in determining whether these children, E. and D., have been alienated from their father by their mother. This statement remains true even if I “substitute” Mr. Hurwitz’s will-say statement into a report, as Mr. L. suggests I do.

Without even getting into the gatekeeping role of the court, where a determination as to the threshold relevance and necessity of this evidence would be required, I do not find that this is a case where I would exercise my discretion pursuant to Rule 20.2(6) to permit Mr. Hurwitz to testify as a litigation expert without a report or with a report belatedly substituted by a will-say statement.

The next question is whether Mr. Hurwitz may be permitted to provide factual evidence as to the nature of the Families Moving Forward program and its similarities to the Building Bridges program. While certain written information has been submitted describing the Building Bridges program, I agree with Mr. L. that understanding the inner workings of such a program may be helpful to the court in determining, if a finding of alienation is made, whether it or something similar would be appropriate or beneficial to E. and D. in this case. Mr. Hurwitz may, therefore, testify for the purpose of providing a description of the Families Moving Forward program and its’ similarities to the Building Bridges program.

Background Facts

[12] The parties married on August 16, 2003 and separated on March 16, 2017. Two children were born of the marriage, E.L. born on March **, 2005 (now almost 17) and D.L. born May **, 2005 (now almost 15).

[13] Mr. L. is a Detective Sergeant in the Human Trafficking unit of the Ottawa Police Services. Ms. L. is a dental assistant and has been employed for many years in the office of Dr. A. Cherun.

[14] The parties remained living separate and apart in the matrimonial home until on or about April 22, 2017, when Ms. L. moved to the home of her parents (“MGP’s”).

[15] They then commenced a regime of shared parenting on a week on/week off basis, with the exchange occurring on Sundays. D. did well with transitions between the two homes, while E. struggled significantly. At some point, the exchange moved to Mondays after school, and this seemed to help. E. somewhat.

[16] Mr. L. stayed in the matrimonial home until it sold in May of 2018, after which he moved into an apartment downtown. After his move, Ms. L.’s parents were more involved in the transitions of the boys than she was, which frustrated Mr. L. as he was not comfortable dealing with her parents. He also wanted to discuss with Ms. L. the struggles that E. was having with transitions, which she never seemed willing to do.

[17] Mr. and Ms. L. engaged in mediation through the spring/late summer of 2017, and then Ms. L. commenced the original application in November of 2017.

[18] In December of 2017, there was an incident involving Mr. L. and the children in which the Children’s Aid Society and Ottawa Police Services became involved. The Society investigated and closed their file in February of 2018. No charges were laid by the OPS. After the investigation, the parties continued to share time with the children equally until November 26, 2018.

[19] On November 26, 2018, E. sent a text to Mr. L. informing him that he and D. would not be coming for his parenting time and would be staying with Ms. L. They have remained in Ms. L.’s care ever since. But for one brief visit on Christmas Eve of 2018, Mr. L. has not had parenting time with the children.

[20] The parties consented to Dr. Abe Worenklein conducting a custody and access assessment, which was completed in March of 2020.

Positions of the Parties

[21] Mr. L.’s position is that Ms. L. has alienated the children from him, and that the only remedy is for decision-making authority to vest in him and for the family to participate in the Family Bridges program so that he may be reunited with his sons.

[22] Mr. L. alleges that E. and D. are alienated from him based, inter alia, on:

• Ms. L. left him to be the disciplinarian of the children during the marriage;
• Ms. L. declined to engage with him over the period from separation to November 26, 2018 regarding the struggles E. was having with transitions;
• Ms. L. failed to encourage the boys to return to his care after November 26, 2018;
• Ms. L. has made unilateral decisions for the children, without consulting him or seeking his input or consent;
• Ms. L. has failed to provide information to him regarding the children in a timely fashion;
• Ms. L. does not support the children’s relationship with him; and,
• Ms. L. has failed to ensure that the children attended with the reconciliation counsellor identified by the parties after the December 7, 2020 settlement.

[23] Ms. L.’s position is that the boys are estranged from Mr. L. due to his own actions. Notwithstanding her efforts to have the boys engage with Mr. L., they are choosing of their own accord not to do so. She seeks an order for sole decision-making authority over the boys, given that they are now in her sole care and co-parenting with Mr. L. is no longer feasible.

[24] Ms. L. alleges the children have become estranged from Mr. L. based, inter alia, on:

• Mr. L.’s increased anger and impatience with all members of the family, particularly since his return from a posting in Haiti in 2010 and the death of his friend and colleague in 2013;
• Mr. L. being physical while discipling the children, including in December of 2017;
• The children witnessing Mr. L.’s mistreatment of her, both pre- and post-separation; and,
• The children feeling pressured and not listened to by Mr. L. and his mother, A. L.

Dr. Worenklein’s Assessment Report of March 23, 2020 and Testimony of December 3, 2020

[25] To order what Mr. L. has requested, the court would have to find that E. and D. have been alienated from him by Ms. L. To this end, Mr. L. relies on the assessment conducted by Dr. Workenklein, the report of which is dated March 23, 2020. [1]

[26] In the “Conclusions and Recommendations” portion of his report, starting at page 45, Dr. Worenklein variously stated the following:

…However, it is evident that the children do have very negative feelings towards their father which have not been able to be dealt with successfully so that the children do not have a relationship with their father (pp. 45-46)…

…While an experienced professional in reunification therapy could be very helpful in breaking the ice between the children and their father, I do believe that it is not only the children who are to be involved in the effort at reunification, but also their mother must play a role in understanding and reinforcing the benefits that the children would obtain from having a relationship with their father (p. 46)…

Taking into account what has transpired in the past and the children’s statements and reported perception of their father, I strongly believe that the children should be seen in Reunification Therapy (p. 46) (Emphasis added)…

After reviewing the file and after considering the animosity and the extreme rejection of their father, I would strongly suggest the Family Bridges intensive program in which the children are provided an intensive program “that helps unreasonably alienated children and adolescents adjust to living with a parent they claim to hate or fear.” (p. 46) (Emphasis added)…

[27] After setting out at page 47 where Family Bridges would not be appropriate, including in situations where the children’s rejection of a parent is reasonable and proportionate, where the court finds it’s in the children’s best interests to remain with the favoured parent, where alienation is not likely to become severe or where a child’s parenting time with the rejected parent is likely to be limited in any event, Dr. Worenklein stated:

One needs to ensure that the refusal of the children is NOT based on legitimate concerns voiced by the child(ren) in which it is realistic that the children should not see that particular parent for legitimate and valid reasons. THIS, I believe, IS THE SITUATION IN THIS FAMILY. (Bold emphasis added, capitalized emphasis original).

[28] Finally, on page 48, Dr. Worenklein indicated: “I would strongly recommend that the Family Bridges Program should be seriously considered with this family.” (Emphasis added)

[29] Dr. Worenklein was qualified as an expert in conducting custody and access assessments and in assessing alienation, and testified in the trial in 2020. [2] In his testimony, Dr. Worenklein was quite focused on what he referred to as the “parent report cards”, wherein he asked the children a number of questions about each of their parents and asked them to grade the parent in relation to those questions. The children filled out the report cards twice, once on December 1, 2019 and again on January 26, 2020. [3]

[30] In his December 1, 2019 report card “for Teenagers”, E. gave Ms. L. 20 “A’s”, five “B’s”, two “C’s” and one “F”. He gave Mr. L. two “A’s”, eight “B’s”, six “C’s”, six “D’s” and five “F’s”. He gave no grade to Mr. L. for one question.

[31] In his January 26, 2020 report card “for Teenagers”, E. gave Ms. L. 21 “A’s”, five “B’s”, and one “C”. He gave her no grade for one question. In the same report card, E. gave Mr. L. six “B’s”, nine “C’s”, ten “D’s” and two “F’s”. He gave no grade to Mr. L. for one question. While there was some fluctuation in E.’s responses between December of 2019 and January of 2020, it was not drastically so.

[32] D.’s responses, on the other hand, did dramatically change between the report card dates. In his December 1, 2019 report card “for Children”, D. gave Ms. L. 23 “A’s” and two “B’s” out of 25 questions. He gave Mr. L. seven “C’s”, six “D’s” and twelve “F’s”.

[33] In his January 26, 2020 report card “for Teenagers”, however, D. gave Ms. L. 28 “A’s” and he gave Mr. L. four “D’s” and twenty-four “F’s”.

[34] In his original testimony, Dr. Worenklein was struck by the fact that out of 28 questions, D. gave his mother 28 “A’s”, while he gave his father all “F’s” but for four “D’s”. He did not, however, explain the difference in the questionnaires that were “for Children” versus those that were “for Teenagers” or why D. was given one of each while E. was not.

[35] Nevertheless, based on the children’s responses to the report cards, their individual interviews, juxtaposed with photos and Father’s Day cards, and the remaining information gathered, including that Mr. L. was very involved in the boys activities, particularly their hockey, which he coached for many years, when asked by Mr. L.’s counsel if his opinion was that “the children have indeed been alienated”, Dr. Worenklein responded: “It’s the only thing that makes sense to me.” [4]

[36] Dr. Worenklein indicated in his testimony that there is a difference between estrangement and alienation, indicating: “Estrangement is when there’s a realistic reason why the children are estranged from the parent whereas alienation is that there is no realistic reason, it’s just that the children are basically turned against that parent.” [5]

[37] Later in his testimony, after discussing the eight characteristics of alienation from a chapter to which Dr. Worenklein contributed in the book Working with Alienated Families & Children [6], Dr. Worenklein was asked by Mr. L.’s counsel [7]:

Q. …So there were sufficient behavioural manifestations in your opinion to conclude that there was- that there, there’s alienation in, in this case? A. It seems that way, very, very strongly.

[38] Again, after reviewing a chart on the “Differential Diagnosis of the Three Levels of Parental Alienation Syndrome” from a document entitled the International Handbook of Parental Alienation Syndrome [8], Dr. Worenklein was asked if he’d put the L. children into the severe category of a parental alienation case, to which he responded: “Definitely closer to the severe than to light or slightly moderate or whatever.” [9]

[39] Ultimately, Dr. Worenklein recommended that the children attend the Family Bridges program, the pamphlet for which indicates it is “an innovative educational and experiential program that helps unreasonably alienated children and adolescents adjust to living with a parent they claim to hate or fear”. [10]

[40] However, later in Dr. Worenklein’s testimony, while being questioned by Ms. L.’s counsel about the contents of the Children’s Aid Society of Ottawa file from the December 2017 investigation, it was confirmed that he never received copies of it, the OPS occurrence report or the contents of Ms. Malher’s file (whom the children had been seeing in 2019/2020) prior to completing his report. Nor did he speak with anyone from the CAS about their investigation. Rather, Dr. Worenklein had only the Society’s closing letter dated February 23, 2018 in his possession. Dr. Worenlkein admitted that the contents of the CAS file (which also contained information about interviews conducted by the OPS) could possibly be relevant to his assessment, and he wanted an opportunity to review it before proffering an opinion in that regard. Dr. Worenklein was, therefore, scheduled to review the file and resume testifying on December 8, 2020, but the parties entered discussions and ultimately resolved the matter as set out above.

Post December 7/11, 2020 Minutes of Settlement and Final Order

[41] After the settlement, the parties agreed to retain Dr. Adrienne Matheson for reunification therapy. Mr. L. had an intake meeting with her on January 12, 2021 and Ms. L. had her intake on January 14, 2021. Dr. Matheson met with the boys together in person on February 2, 2021, and again virtually on February 17, 2021.

[42] On February 12, 2020, Dr. Matheson had a telephone conversation with Mr. L. during which she reviewed her February 2, 2020 appointment with the boys. In her note of that conversation [11], Dr. Matherson indicated as follows:

Reviewed the appointment with the boys Informed Dad they [sic] they were not interested in pursuing reintegration Shared with Dad that they are angry with him and believe that he does not have a genuine interest in changing his behaviour to change his relationship with them This writer shared with [Mr. L.] that both boys’ [sic] are feeling not heard and not validated. They are reporting that they have communicated this to several professionals and nothing is happening Discussed my concern of the Family Bridges program as the boys are so opposed at this point because of their strong feelings towards their dad and not felling heard by multiple clinicians Dad feeling completely isolated regarding the boys; not receiving pictures or information Dad strongly believes that the boys have been alienated; Dad is concerned that the children are too young to make this decision

[43] On February 22, 2021, Dr. Matheson wrote the following email to Mr. L [12]:

Hi, [Mr. L.],

Following my meeting with the boys last week, they are not in agreement with an in-person meeting. The goal of my meeting with them on Tuesday was to help them understand that my role is to offer them a platform to share with you how they feel, and you the same. Unfortunately I was unable to make gains and heard from [Ms. L.] yesterday that they will not agree to attend. In my conversation with her following my appointment with them on Tuesday, it is my belief that [Ms. L.] had a genuine interest and goal of having them attend this meeting and engage in this process.

At this pint in terms of my involvement, there are no further steps that I am able to offer that would be helpful in moving forward. If you have any questions, please do not hesitate to contact me and we can find a time to connect directly.

Adrienne

[44] Ms. L. attempted to schedule another appointment for the boys with Dr. Matheson in May of 2021, but nothing came of it.

[45] Dr. Matheson testified that she took all the steps that she could at that time, but family reunification therapy required all participants to engage, and she concluded that proceeding was not indicated as the children would not engage.

[46] This pattern was not dissimilar to what had transpired after the boys refused to return to Mr. L.’s care in November of 2018. After that occurrence, the parties engaged a counsellor for the boys, Megan Mahler. E. and D. signed consents to work with Ms. Mahler in December of 2018, so very shortly after the disruption in Mr. L.’s parenting time. Ms. Mahler saw D. on December 14, 2018, January 11, 2019, and February 1, 2019, and E. on December 14, 2018 and February 1, 2019.

[47] At Ms. L.’s request, and after getting an “ok” from the boys for its contents, Ms. Mahler wrote a letter “To Whom it May Concern” for court purposes dated February 1, 2019 [13]. In it, Ms. Mahler stated:

On December 14, 2018, I met with both E. and D. each individually. To date I have met with D. for three individual sessions and E. for two individual sessions. During my intake sessions with both E. and D. they spoike about their father’s anger and feeling scared of his reactions should they do something he did not like or approve of. They described that their father would “yell, scream and swear a lot” when upset.

During my intake appointment with D., he reported tht his Dad was “an angry person” who was highly critical. During my intake with E., he reported that he wished his father would “change and be happier” and be less angry. According to E. and D., while they were living in the “old house”, the three of them sat down more than once to talk about how their father’s anger made them feel. They described that their father would agree to change and work on it. However, they reported the change did not last. E. and D. described they feel confused that there father still does not seem to understand that how he expresses anger and frustration has affected their relationship.

The initial impression is that both E. and D. have a history of feeling hypervigilant around their father due to he emotional reactivity. They reported several experiences of being highly criticized and shared stories of feeling embarrassed and ashamed of their father’s anger (particularly at hockey). During my brief interactions with [Ms. L.], at no point did I get the impression that she was trying to keep the boys from their father or alienate him from the family. In fact, it is my impression that she has been stroingly encouraging E. and D. to spend time with their father, speak with him directly about their concerns and to keep communication open through text messaging. E. and D. have both shared accounts of their mother encouraging, or what they perceive as “forcing”, more regular communication and visits with their father, including spending Christmas Eve with him and their paternal grandparents. However, it would appear that E. and D. are now making the decision not to engage due to their own hurt and frustration with their father’s emotional reactivity.

[48] Ms. Mahler again spoke with D. at the request of Ms. L. on June 27, July 12 and July 25, 2019. D. indicated that he did not want to go to therapy with Mr. L. and he did not want a relationship with him at that time. Ms. Mahler also met with E. on June 28, July 12 and 25, 2019. E. also continued to not want to have a relationship with his father. On July 24, 2019, again at the request of Ms. L. and with the consent of the boys, Ms. Mahler wrote a “To Whom It May Concern” letter [14] for court purposes in which she stated:

I have been working with E. and D. L. intermittently since December 2018.

As difficult as it must be for [Mr. L.], their father, I believe his sons need him to respect their boundaries at this time. Attempting to force them into counselling with him would likely not go well at this stage. Perhaps, when the boys are ready, reconciliation therapy could commence with a therapist who specializes n this work and has no previous therapeutic alliance with anyone in the family in order to avoid any conflicts of interest.

In regards to what they need from [Ms. L.], their mother, I believe they need for her to remain a steady clam presence and to encourage E. and D. to communicate with their father when they are ready. She has continued to encourage them to come to therapy to process their emotions, which is also positive.

[49] Ms. Mahler continued to see the boys sporadically into the spring of 2020, mainly because of paragraph 5 of Justice Shelton’s temporary order of August 8, 2019, which provided: “On consent and on a without prejudice basis, the children shall continue to see Ms. Mahler as she deems appropriate.” Neither child was particularly interested in continuing with counselling but indicated to Ms. Mahler that they did not want to fight with Ms. L. about it, so attended as required.

[50] Ms. Mahler wrote one more “To Whom It May Concern” letter dated March 20, 2020, which provided:

I have continued to meet with E. and D. L. on occasion to see how they are. The both report doing very well and enjoy the home environment with their mother. I observed lower levels of stress and fear of having to confront their father. They appear very healthy and emotionally stable.

According to the boys, their mother [Ms. L.] has continued to encourage them [sic] contact their father [Mr. L.] when they are ready. The boys maintain that they do not want to see him. E. continues to have his father’s cell phone number blocked from his phone and feels a sense of relief knowing he will not be directly contacted by him. More recently, D. asked his father not to attend his hockey games since he felt it added additional stress or pressure to him.

[51] At his request, Ms. Mahler also spoke to Dr. Worenklein and he included her information in his report at pages 35 and 36, which information concludes with:

The initial impression of Ms. Mahler was that both children have a history of feeling hypervigilant around their father due to his emotional reactivity. They did describe several experiences of being highly criticized and shared stories in which they were feeling embarrassed and ashamed of their father’s anger. Ms. Mahler did report that she did not get the impression that the children were being alienated from their father by their mother, but rather that their mother has been encouraging the children to spend time with their father, including spending Christmas Eve with him and their paternal grandparents. Ms. Mahler did report that “…it would appear that E. and D. have made their own decision not to engage with their father due to their having reportedly been frustrated by their father’s reactivity.”

Dr. Worenklein’s Testimony of October 7, 2021

[52] Dr. Worenlkein was recalled to testify in the MTC trial. His opinion appeared to have changed from his December 2020 testimony, in that he no longer supported his former opinion that the children were alienated by Ms. L. Indeed, he seemed at times to dispute that he had ever given that opinion, notwithstanding what I have outlined from his report and testimony above. He also appeared to accept that E. and D. had legitimate reasons to not want to see their father.

[53] Examples of some of the statements made by Dr. Workenklein in his 2021 testimony are:

• “I did not get anything from the children nor from the mother that she did not want the children to have contact with the father.”
• “From my perspective, when there is a problem with anger management, it doesn’t disappear by itself; it takes time to fix that.”
• “When an individual has a problem managing impulses, it will affect relationships.”
• “I didn’t get any sense from the children that they were being told their father was no good.”
• “I didn’t think that the children’s reactions were manipulated by the other parent.”
• “The boys gave legitimate reasons why they did not want to spend significant time with their father.”
• “I don’t think it’s a question of Family Bridges – the criteria would mean that the mother turned the children against the father, and I didn’t have any evidence of it.”
• “I do not believe the children have been alienated against the father by their mother.”
• “I know it is not alienation.”
• “I didn’t get anything from the children that even hinted that their mother did not want them to see their father.”

[54] When questioned about his recommendation regarding the Family Bridges program, Dr. Worenklein explained that he had placed a call to the program to question whether they dealt with estrangement, as he thought they would. He stated that “they did not get back to him in time to change that.” In other words, he was not recommending Family Bridges because of alienation; rather he was doing so because of estrangement. This explanation is completely contrary to the evidence Dr. Workenklein gave in 2020, when he agreed with Mr. L.’s counsel that the children were alienated, and in the category of severely so.

[55] Mr. L.s counsel attempted to redirect Dr. Worenklein to his original findings, including by taking him through a chart of 28 “Attitudinal and Behavioural Characteristics of Programming-and-Brainwashing Parents” in Chapter 9 of a book entitled Children Held Hostage [15]. While Dr. Worenklein agreed that certain characteristics could be identified in this case, he couldn’t say all 28 were present. He insisted that while alienation was “being discussed”, so too was estrangement.

[56] Frankly Dr. Worenklein’s evidence was unhelpful. It was disjointed, confusing and inconsistent. Unlike in his previous testimony and his 2020 report, Dr. Worenklein did not support either a finding of alienation of the boys by Ms. L. against Mr. L. nor did he any longer support the family participating in the Family Bridges program. Although he did not expressly say so, it seems more likely that Dr. Worenklein reconsidered his previous opinion when he saw the degree to which the children were expressing their reasons for not wanting to spend time with Mr. L. and the evidence which supported the formulation of those reasons.

[57] In the end, the court received no reliable professional evidence that E. and D. were/are being alienated from Mr. L. by Ms. L. While Mr. Hurwitz did provide evidence as to the nature of the programs proposed, as per my ruling on the voir dire, he did not proffer any opinion on alienation in this case. However, Ms. Mahler did not see it, Dr. Matheson did not see it, and ultimately, Dr. Worenklein did not see it. On the contrary, Ms. Mahler and Dr. Matheson relied upon what the children were reporting to them, that they did not wish to have a relationship with or see Mr. L. because of his anger and reactivity, and they were tired of not being heard and of being pressured or “forced” by their mother to continue to engage in services where reuniting with him was the intended outcome. Dr. Worenklein ultimately appears to have formed the opinion that the children are estranged from their father, and that they have articulated ample and legitimate reasons for that.

[58] It would, nevertheless, still be open to the court to make a finding of alienation if the evidence warranted one. It does not. Although I sympathize with Mr. L., the evidence before me leads me to the conclusion that the children have made up their own minds about the nature of the relationship that they wish to have or not have with him, as the case may be.

[59] I do find that Ms. L. did not help the situation early on when the children were feeling increasingly stressed about having to go to Mr. L.’s for his parenting time prior to November 26, 2018. One cannot help but feel that if Ms. L. had attempted to have a conversation with Mr. L. about how the children were feeling, and how it was becoming more and more difficult for her to get them to go, some solution that did not result in the children entirely rejecting Mr. L. may have been found. Having said that, given the nature of their relationship, and the nature of their personalities as determined by the psychological testing conducted by Dr. Worenklein, I am uncertain how fruitful such a conversation may have been. I am also uncertain if Mr. L. would have been capable of accepting anything less than 50/50 parenting time, had such a conversation taken place.

[60] Mr. L’s profile, in part, is:

Mr. L.’ profile exhibits an attention-seeking optimistic social style, a propensity for stimulus seeking activities, and a tendency toward avoidance of deeper, more serious matters. The results also suggest that his interpersonal relationships are generally shallow and he frequently meets challenging social situation by deferring to you with witticisms and misdirection. The results also indicate that he is ill inclined to address conflict, preferring to emphasize positive qualities of himself and others, and to mitigate difficult situations with charm. In seeking attention and pursuing a pleasure-oriented life, he may instigate frustration in others by glossing over and invalidating their true feelings. The results also indicate that intolerant of inactivity and prone to view serious discussions as a waste of time, he is perceived by others as impulsive, shortsighted and egocentric. His penchant for momentary excitement and his marked intolerance of frustrations may lead to more serious conflicts with social or vocational commitments.

In the event that he is more chronically challenged, surface affability may give way to abrupt angry outbursts. Although perceived as charming and clever to casual acquaintances, he may be seen as discordant, flippant and manipulative by those who have enduring relations with him. He is likely, according to the results, to offer fleeting and superficial displays of affection in return for his considerable demand for attention.

“Most notable is his forceful and driven energy level. Emotionally excitable and intensely zealous, he is as likely to present with a high degree of animation as he is to evince hot-headedness”, according to the results. Unrestrained and rash, he is often restless and indefatigable. In addition, the results indicate that he regularly attempts to engage others with his infectious enthusiasm and ability to dispel tension. Usually exuberant, he may become intrusive, persistently overbearing, and needlessly insistent when under duress or otherwise particularly enthusiastic. [16]

[61] Ms. L’s profile, in part, is:

…The results suggest that she reports feeling anxious and is likely to experience significant anxiety and anxiety-related problems, intrusive ideation and nightmares. She is also likely to be stress reactive and worry prone and to engage in up [sic] excessive rumination as a result of her self-doubt. There was indication that she does feel insecure and maybe self-disparaging….It does appear that she can be unassertive and submissive, not liking to be in charge, and ready to give in to others. The results indicate that she is indeed very likely to be passive and submissive in interpersonal relationships…The results also suggest that she could possibly benefit from antidepressant medication and it does appear that she may have low self-esteem and other manifestations of self-doubt requiring interventions possible for anxiety and reducing passive, submissive behaviour.

The results suggest anxious conformity to the expectation of others, rigidity and compulsiveness and defensiveness about admitting psychological problems. She anticipates criticism, derogation, and possible abandonment by important figures in her life and is inclined toward self-blame and self-punishment, a fear of expressing emotions and of losing control is evident often to the point that she barely registers awareness of her emotionality. The results also suggest she is likely to appear grim and serious minded, and beneath this controlled façade may be strong feelings of insecurity that are evident in her tendency to belittle herself, to distance herself from others and to anticipate rejection [sic] is possible that her self-doubts and low self -esteem may result in a chronic pattern of quiet conformity to a supportive institution although in this way she may gain a measure of security and be able to identify herself with those whose actions cannot, she believes, be met with disfavor.

[62] These personalities seem to have combined to create a perfect storm, one in which Mr. L. is or has become “intrusive, persistently overbearing, and needlessly insistent” and Ms. L. has been and remains “unassertive and submissive”. Ms. L. did seemingly leave Mr. L. “in charge” during the marriage, particularly of disciplining the children, and this will have contributed to E. and D.’s experience of and feelings towards Mr. L. Ms. L. is also very timid in her communications with Mr. L., fearing (possibly with some justification) that nothing is ever good enough, and Mr. L. is very forceful and admittedly sarcastic in his, which has not made for positive co-parenting communication. However, none of this amounts to alienation, in my view.

[63] Nor does Ms. L.’s role in the investigation conducted by the CAS of Ottawa in December of 2017 amount to alienation. Mr. L. attempts to point to that occurrence as ill-intended on the part of Ms. L. He relies on the fact that the information of the referent regarding his and Ms. L.’s relationship is almost identical to the information Ms. L. provided to Dr. Worenklein about the nature of their relationship. Undoubtedly, somebody very close to Ms. L. made the referral to the CAS, someone who was privy to information Ms. L. had. While she may technically not know who made the call (between likely her mother or her doctor friend), she is very aware of who knew what she knew. While Mr. L. remains quite fixated (and resentful) about this, it is, frankly, irrelevant who called the CAS and provided the information, for several reasons. First, Mr. L. admitted to being physical with the boys during the incident in question. Second, he also admitted to yelling and swearing at the boys and their mother. Third, the CAS verified the following concerns: “1) Physical Force and/or Maltreatment by a Primary Caregiver and 2) Risk of Mental/Emotional Harm Developmental Condition – Partner violence”. Finally, not long after the investigation, the parties reverted to a 50/50 parenting regime. Had the report simply been malicious, or done for the purpose of alienating the children, none of the above would have happened.

[64] While Mr. L. points to the similarities between what the referent reported to the CAS and what Ms. L provided to Dr. Worenklein in a written statement, he seems unable to accept the validity of any of the information in either. Regardless of who made the report to the CAS, the information contained therein and also provided to Dr. Worenklein by Ms. L. is not something she made up; it is something she felt. Mr. L. does not accept or recognize in any way how Ms. L. experienced their relationship. Undoubtedly, her passive nature contributed immensely to the dynamics of the relationship, but what she reported to Dr. Worenklein, and to this court, is how she experienced Mr. L. He may disagree or have experienced the relationship differently, but he cannot simply dismiss Ms. L.’s experience of it, or say she was wrong, and therefore alienating, to feel what she felt.

[65] Similarly, while Mr. L. has been forthright about recognizing his weaknesses – that he is impatient, demanding, forceful, for example - he seems far less capable of understanding or accepting the impact that those traits have had on the children. He does not accept that what E. and D. have told Ms. Mahler, Dr. Worenklein and Dr. Matheson is of their own volition; he can only see Ms. L. as being responsible for it. Mr. L. is particularly angry that Ms. L. agreed to the Minutes of Settlement last November when it quickly became evident that the children were not prepared to participate in reunification counselling. He sees Ms. L. as having tricked him and failed the children, where, in fact, she was trying very hard, likely against her better judgment, to get the boys to engage.

[66] Mr. L. does not accept that the boys have chosen not to have a relationship with him because of his own behaviors and because they do not see him as capable of changing. He is incapable of juxtaposing this with his own impressions of the boys’ relationship with him, which he described as very involved (particularly as it related to their extracurricular activities), affectionate and loving.

[67] Astonishingly, what E and D. have consistently described is the personality outlined in Dr. Worenklein’s test results. Mr. L. has “glossed over” and “invalidated” the boys’ true feelings, something that has definitely “instigated frustration” in E., who cannot believe that his father doesn’t know how he feels or why he feels it. He is described by the boys to Ms. Mahler to have “surface affability”, to appear one way in public and another alone, and for that surface affability to “give way to abrupt angry outbursts”. He is seen by E. to be “manipulative”, and D. has described his “hotheadedness”. E. and D. described to Ms. Mahler “walking on eggshells” around Mr. L. and she, in turn, described them to Dr. Worenklein as “hypervigilant” in Mr. L.’s presence.

[68] The evidence establishes that the boys had their own reasons to want to stop seeing Mr. L. Their refusal is, in the words of Dr. Worenklein, “based on legitimate concerns voiced by the child(ren) in which it is realistic that the children should not see that particular parent for legitimate and valid reasons.” [17] Had Mr. L. been willing at any time to validate their feelings and to stop being insistent about his role in their lives (as he sees it), it is possible they may have resumed seeing him by now. He has not stopped being insistent; indeed, Mr. L’s paternal aunt, J. A., testified and also indicated to Dr. Worenklein that Mr. L. “would never give up on his children”. It is, I am afraid, Mr. L’s overbearing insistence and not alienation by Ms. L. which has led to the children’s current intransigence.

[69] I was asked by Ms. L. to interview the children due to their strongly expressed feelings that they had not to date been listened to. Although Mr. L. objected to a judicial interview of the children, I agreed to conduct one given the ages of the children (14 and 16 at the time) and their right to be heard and to participate in processes where decisions affecting their interests are being made pursuant to the UN Convention on the Rights of the Child, to which Canada is a signatory. I met alone with each of E. and D. individually on October 8, 2021, along with my Registrar and Reporter, and provided the below summary to the parties:

E.

• Aware that parents in court, still determining where we want to live and stuff, but I don’t really know too much about it.
• Reasons to speak to me – haven’t really been properly listened to by last three people, Dr. Worenklein, Megan Malher and Dr. Matheison
• Thought if he spoke to the Judge, he wouldn’t need to speak to anybody else
• E. would like to be able to choose on own where he wants to live and who he wants to spend time with
• Would like to stay with mom, but lots of push back to see/speak to other people
• Doesn’t know why he’s not being taken seriously
• Main reason for his position is way his father has treated him in the past -screaming, yelling, sometimes physical contact
• Doesn’t remember when started, almost like that his whole life
• Way dad has treated him has pushed him to make this decision
• Wants to live with mother, decision to have contact with father should be up to him, not sure he’d want to have contact with him at this time; if he would like to, it would most likely be further on in his life, and he should be able to make the decision on his own
• Details about treatment – physical contact at times, CAS report after brother had bruise from father after allegedly trying to split them up
• Another occasion when father had a cast, came downstairs hit them, hit them with crutch, screaming
• Another time when he told father he was quitting cadets, father was driving erratically, screaming, hitting console in the car
• Relationship with mom quite good, normal relationship that any kid should have with mom
• Going to Colonel By Secondary school – wants to get apprenticeship with HVAC company afterwards
• Importance to him of having a relationship with father? – perfectly fine without talking to him, does well in school, has a social life
• Relationship with PGM – main reason not on speaking terms with her is because she enabled father’s behaviour, she would always side with him, say their fault,that they’d forced father to do what he did, tried to speak to her a couple of times and couldn’t get through to her
• PGF – doesn’t think he speaks to father, but doesn’t know much about it, sees him regularly, solid relationship
• MGP’s – good relationship, see them regularly for dinners
• Has seen father at rink where he works a couple of times – father came to talk to him once, didn’t go very well, asked same question he usually asks “why don’t you want to speak to me”, told him for same reason he always told him “due to his behaviour”; like most other people he’s spoken to, father refuses to listen to what he tells him
• Father changing behaviour? – spoken to him three times, once before separation with mother and brother at dinner table, second time after separation at dinner table, third time on November 26, 2018 when he showed up at mom’s house
• Doesn’t know if he’d be genuine – doesn’t think he’d have any willingness to sit down with dad with a third party/therapist

D.

• Not too sure what’s going on, but does know that it’s been going on for awhile, not too sure what stage at, but hopes it’s getting close to the end
• Main reason he wanted to talk to me is because he and E. don’t want anything to do with dad, have made it clear to multiple people, haven’t really been heard much
• Because of his anger, always screaming, very physical, hits us sometimes
• Once at hockey tournament, choked him on the wall because he didn’t like how brushed teeth, another time when 7/8 dad choked him on front door while slamming his head on the door because he didn’t like something having to do with the boots, after hockey games dad would scream at him if didn’t play well, tons of stupid things, brushing teeth thing so stupid and went on every day
• When first separated, scared to live with father on his own, not comfortable at all, not too sure what happened, but forced to do it for about a year
• Went to live with mom when CAS involved, had a bruise on neck by getting hit with a lacrosse stick or something
• 5th grade when parents separated, 6th grade 50/50, by 7th grade living with mom fulltime
• Tired of being nagged to do counselling, have been really clear, going on for three years or something, very tiring, nobody wants to listen to us, a lot of counseling we’re being pushed into
• Not at all interested in having contact with father, very clear about that multiple times, doesn’t envision a time when he would be interested in having contact with him
• Very good relationship with mother, laid back, taught him a lot, hasn’t raised voice to them but they listen very well to her, very good mom
• MGP’s -very good relationship, see them often, couple of times a week
• PGF – see very often, go for breakfast, eat at his house
• PGM – don’t want to see her, during abuse, she was always there in dad’s corner, always saying it was justified, he’d scream at them, chock them, hit them, she’d say he was justified
• Father very physical, choking, grab him by the neck, once picked him up by the neck and hit head against the wall while screaming at him
• Mother tried to tell him to stop, never listened, screamed at mom too a lot, never physical but scream at her a lot, call her names, slamming things
• Wasn’t always really angry, always had a bit of a temper but there was a time when he switched and not one day where he was smiling after
• Doesn’t remember when the switch happened, remembers dad went to Haiti when he was little, maybe a little bit after that that he switched
• Very strict about hockey, forced him to do teams when he didn’t want to in the spring and summer, very angry if didn’t play well, when he was coach, would scream at him, everyone in whole rink would know, slamming stuff, bench him
• Want to be very clear that don’t want a relationship with him, see him or go talk to him

[70] The information provided to me by the boys in their respective interviews was very consistent with that provided to Ms. Mahler, Dr. Worenklein and Dr. Matheson. They are doing well in their mother’s care, are tired of having to deal with the issue of contact with their father, and they simply want to get on with their lives. As can be seen, they also have reasons for not wanting to spend time with their paternal grandmother, A.L., who also testified. She has indeed sided with Mr. L. in his quest to blame Ms. L for this situation, and while, as I have already indicated, Ms. L. is not blameless, she has neither caused Mr. L. to act the way that he has nor the children to reject him. Indeed, in keeping with her personality, Ms. L. has “anxiously conformed to the expectations of others” by keeping the boys in counselling long after they would have liked, and by taking them to see Dr. Matheson. Ms. A.L. has defended Mr. L., including to and in front of the children, to the extent that her previously amicable relationship with Mr. L.’s father, J.L., has now broken down. Mr. J.L. recognizes Mr. L.’s anger and his manner of dealing with Ms. L. (during the marriage and after) and the children. He does not support Mr. L.’s assertion that Ms. L. is the cause of his difficulties, and strikingly, in his own testimony indicated he was inspired by E. to stand up to his son for the first time in his own life.

[71] What is clear in this situation is that all persons involved are in pain. It would, of course, be optimal for the children to have a relationship with Mr. L. (and with Ms. A.L.). E. and D. love their father, and he has a great deal to offer them. However, they cannot manage a relationship with him when they feel the need to be hypervigilant in his presence, and so long as he continues to ignore their feelings and their expressed wishes, and to blame their mother for the situation in which they find themselves. Under these circumstances, I cannot find that forcing them to do so would be in their best interests.

[72] Mr. L. is extremely upset with what he perceives as Ms. L.’s lack of communication and/or consultation with him about the boys. The evidence reveals that Ms. L. has indeed not been consistent in consulting with Mr. L. on decisions made for the children since they came to be in her fulltime care, but she has made efforts to keep him informed. Ms. L. has at times provided Mr. L. with information in advance of him asking questions and at times in response to his questions. She finds it difficult to communicate with him because of his critical and sarcastic manner of responding. Mr. L. has a view of how Ms. L. is to behave in this regard, and in his own communications is very critical about her lack of conformity to his expectations. Given that Mr. L. remains convinced that Ms. L. is responsible for the children’s lack of relationship with him, despite what the children say and feel, and given their ages and the nature of decisions left to be made for them, I find that continued joint decision making is not feasible, and not in E. and D.’s best interests.

[73] I, therefore, make a final order dismissing Mr. L.’s Motion to Change, and granting Ms. L. sole decision-making authority over the children, E.L. and D.L.

Costs

[74] As the successful party on the MTC, Ms. L. will be entitled to an order for costs. If the parties are unable to reach an agreement as to the quantum by March 18, 2022, they may make written submissions of no more than three double-spaced pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Justice Engelking Date: February 11, 2022