COURT FILE NO.: FS-16-86329-01
DATE: 2022 03 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.Q
Catherine Haber and Christopher Haber, for the Applicant
Applicant
- and -
R.C
Philip Viater, for the Respondent
Respondent
HEARD: August 9, 2021 – September 3, 2021, and January 24, 2022 – January 25, 2022. Written Closing Submissions received February 22, 2022
REASONS FOR FINAL ORDER
McGEE J.
The Decision
[1] This is a 2019 Motion to Change the parenting terms for decision making and parenting time within a final consent Order dated May 7, 2018, pursuant to section 17 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) Heard at the same time as the Trial of this Motion to Change was the Applicant mother’s Motion for Contempt, which was withdrawn before the conclusion of the evidence.
[2] For the reasons set out below, I vary the final Order to grant the respondent father, with whom the parties’ teenage son now resides, sole decision making. I decline to make an Order for a parenting schedule with the mother given the unusual circumstances before me. I have referred to the son by his first initial throughout these reasons to protect his privacy.
Overview
[3] L was five years old when his parents separated in June of 2014. His childhood has been largely, but not exclusively shaped by his parents’ very different parenting styles.
[4] L’s mother is the applicant in this proceeding. She sees him as a dependent, learning and behaviourally challenged ADHD child on the autism spectrum who requires strict discipline and monitoring. She does not trust his judgement. She does not believe that his views and preferences are his own whenever they conflict with her views and preferences.
[5] The respondent in the proceeding is L’s father. He sees an extraordinarily bright and charming young man who is constantly improving his ability to manage his emotions, and his expectations of the world around him.
[6] In different circumstances, the opposite parenting styles and differing perspectives of the parents might have proved complementary. They might have provided L with a robust childhood full of healthy structure and grand adventures. But that has not been his experience. His childhood has been experienced from the centre of a damaging power struggle fueled by runaway litigation.
[7] For four full weeks of Trial in August of 2021 and for a further two days in January 2022, I heard detailed evidence of every solicitor’s correspondence and litigation step taken in this proceeding since its inception. But as the end of the Trial drew near, it appeared that the mother - who has been the aggressor in this proceeding - was beginning to hear the concerns and advice of the family law professionals involved in the case. She began considering the views of her son as communicated to her directly and through his counsel and the clinician provided by the Office of the Children’s Lawyer.
[8] On the last day of trial, the mother agreed to the week-about parenting schedule that her son had so desperately desired. Minutes of Settlement were to be forwarded to my attention, leaving only the responsibility for decision making to be determined. I was certain that the tipping point in the conflict had been reached and I commended both parents, expressing hope for a better future and a conclusion to the conflict.
[9] No written agreement was ever received. The week about parenting schedule failed. Once again, L refused to return to his mother’s care. He has since remained in his father’s care with little to no contact with his mother, but for counselling sessions with a clinician of the mother’s choice.
[10] Around the time in September 2021 that the mother’s written closing submissions were to have been filed; I received a motion from her to re-open the Trial. For reasons set out in my endorsement of October 18, 2021, I granted her request, largely because the father did not oppose it and the Office of the Children’s Lawyer advised that L’s views and preferences had changed. He no longer wanted week about parenting. He wanted to reside with his father and have a flexible schedule with his mother, subject to her willingness to join him in reunification counselling.
[11] The Trial resumed in late January 2022. The mother was resolute in her ongoing refusal to participate in any form of reunification counselling with L. She reverted to her pretrial certainty that her son was rejecting her because he had been alienated. In questioning, she could not acknowledge that her son held any personal agency or that he was utterly exhausted from the conflict. Within her closing submissions delivered in February of 2022, the mother insisted that she retain decision-making authority over L in the face of his rejection of her care. Moreover, she demanded that L restart the week about parenting schedule that she had so vehemently opposed prior to the start of Trial.
[12] These reasons could focus on the past six years of litigation which began with the issuing of this Application in 2016 and has been marked by the mother’s false projection of alienation onto the father, its resultant interventions, and the misuse of a contempt proceeding since the issuing of this Motion to Change. But section 16(2) of the Divorce Act requires me to focus on L’s best interests and primarily consider his physical, emotional, and psychological safety, security, and well-being. In doing so, I conclude that L is best parented within the circumstances that he has already chosen: to live with his father and to have limited contact with his mother.
[13] L’s choices within this litigation have brought him into direct and sustained conflict with his mother. Her position at the start of Trial was that he be allowed no further contact with his father and that he be placed into the Family Bridges Program. Other than reviewing its website, she had not made any investigations into the Program: its cost or its protocols. Her focus was on the litigation battle and pulling L away from his father whom she held, and continues to hold responsible for the breakdown in her relationship with L.
[14] At the time of writing this decision, L has effectively taken control of the proceeding by choosing to live with his father and to limit his contact with his mother. He is by all accounts a mature 13-year-old who has developed remarkable insight into his and his parents’ personalities and the nature of the conflict. I find that he is not an alienated child. He loves both his parents and as their only child, he keenly feels his role in each of their lives.
[15] L has seen his father’s parenting progress over the last six years to match his needs as a young man for reason-based decision making. They share common interests and L easily takes direction and correction from his father. He feels that he is his best self when he is with his father.
[16] In contrast, L is saddened, somewhat resigned, but still easily angered by his mother’s enduring need to hold him to a much younger version of himself: a version in which she was in absolute control, and he was wholly dependent. In her care he feels badly about himself, friendless and constrained.
[17] After providing a condensed litigation history for additional context, inclusive of a summary of the experts’ reports, and setting out the applicable legal principles, these reasons are broken into two parts: decision making and a parenting schedule. I grant the father sole decision making, and with respect to a parenting schedule, I take the unusual step of deciding that L's parenting time with his mother shall be in his discretion. I then address a number of incidental matters including a termination of the child support payable by the father within the 2018 final Order.
[18] I am not prepared to order that the mother attend reunification therapy as proposed by counsel for the OCL. First, I am not persuaded that I have the jurisdiction to make such an Order, and second, I do not find that there is any realistic chance of reunification therapy proving beneficial given the mother’s refusal to engage voluntarily.
Litigation History
[19] I will not include in these reasons every incident or communication to, from or between the parties but for those that are necessary to provide context for my decision because it is important to deliver these reasons in a timely manner. L’s preferred course of counselling with Ms. Barclay remains on hold pending the father’s ability to make decisions for L. The parents are assured that I have listened to their evidence, that of their witnesses and that I have reviewed all their documents.
[20] This is the mother’s May 8, 2019 Motion to Change the consent final Order of May 7, 2018. The final Order sets out a parenting schedule for the father, and relevant to this decision, that the mother has sole custody. It is the variation of that provision for sole custody - now decision making – that is at the heart of this proceeding.
[21] Final Orders are presumed correct, but because the mother has relied so heavily on the consent terms of the May 7, 2018 Order, I will reference the father’s claim for sole or joint custody in the original Application. He testified in this variation proceeding that he compromised his original position on custody after three years of acrimonious litigation in the hope that it would bring peace, and an end to the costly litigation. An Order for divorce followed in July of 2018.
[22] With her custody Order in hand, and unbeknownst to the father, the mother and her new partner began making plans to move from Mississauga to Montreal. During the fall of 2018 the mother removed L from his public school and placed him into a home school program under the guise of his specialized learning needs and social conflict with peers as an ADHD child on the Autism Spectrum. L ceased having any school friends in the community. He became isolated.
[23] L began to reject seeing his father from January 2019 to March 2019. In April 2019 the mother advised the father that she was moving L to Montreal where her new partner was employed. L continued to refuse to see his father from May of 2019 to September 2019.
[24] The mother issued this Motion to Change on May 8, 2019 for the stated purpose of terminating the father’s access terms in the final Order and moving L to Montreal. The father opposed the move and, in his May 31, 2019 Response to Motion to Change, he sought a reversal of custody and an equal residential parenting schedule.
[25] The parties agreed to a Section 30 assessment with Mr. Cross, who gauged the nature of the father-son breakdown, and quickly brought in Andrea Barclay as a personal therapist to support L during a process of reunification counselling with Marci Goldhar.
[26] The services brought in by Mr. Cross were remarkably successful. He met with the parents in early January 2020 to disclose his overall recommendations which he later placed into a written report.
[27] Contemporaneously with that report being issued, the mother abruptly and unilaterally terminated the services of both Ms. Barclay and Ms. Goldhar contrary to the terms of each of their respective engagements.
[28] Terminating a child’s therapeutic bond with his counsellor without some form of closing meeting can be dangerous for a child (or an adult.) An essential support is suddenly removed without any explanation. Ms. Barclay wrote to the mother explaining the risks and asking her to reconsider. When the mother refused, Ms. Barclay strongly recommended a closing meeting with L to end her involvement appropriately and safely. The mother refused.
[29] Ms. Barclay was so concerned for L’s wellbeing that she made a report to the Children’s Aid Society.
[30] Months passed before the mother told L that he would no longer be seeing his therapist. L had no idea what had happened or why he had lost his therapist.
[31] At Trial, the mother’s counsel forcefully argued that the mother had every right to terminate counselling because she was the custodial parent. She pressed the point during the father’s cross examination, not accepting any answer that L’s best interests should yield to the mother “right” to do what she thought best.
Summary of Expert Reports
[32] The parents entered into a Therapy Intervention Agreement with Ms. Barclay in September of 2019.
[33] Her report dated March 27, 2020 described a remarkable difference in L when he was in his mother’s care compared to his father’s care. With his mother he was disruptive, emotional, prone to outbursts and dysregulated. Even when he was rude and personally menacing to the therapist, the mother did not intervene. When L was with his father, he was calm, positive, and talkative. He took direction, was happy to engage in the counselling and gains were observed.
[34] Ms. Barclay identified L as being in a loyalty conflict that was highly detrimental because L was prone to black-and-white thinking, and he was highly sensitive to family conflict. She identified that the mother had responded to L’s challenges at school by withdrawing him, which was the exact opposite of what was needed. The consequence was a sense of social and educational failure in a child with tremendous potential. She went on to detail:
a. That the mother’s approach to L’s behaviours caused her serious concern.
b. The mother’s need for “evidence gathering” within her counselling process was at the expense of L’s behavioural containment and personal safety.
c. The mother’s protective parenting was fostering an unhealthy dependency, including co-sleeping, which L only did at his mother’s home and which he stated that he did not like.
d. That the mother’s inability or refusal to intervene and correct behaviours left L unregulated and at risk of being consequenced through the Youth Justice System.
e. That the father was balanced, patient and clear with L, that he reinforced positive behaviours and corrected negative behaviours.
f. That L only “voiced positive comments about his father and sees his father in a positive light. He is aware that both his parents dislike and distrust one another and he often seems to choose a position in an effort to reduce conflict, which can be very stressful for a child. He has been very consistent that he loves both his parents and he felt loved by both of them.[^1]”
[35] Ms. Barclay recommended L’s enrolment in Wildwood Academy where both parents could be involved in his education and he could gain academic and social skills, that L continue weekly therapy sessions, that L sleep independently when at his mother’s home and that the mother work with a therapist to address her separation issues with L and support him in his independence.
[36] Mr. Cross conducted a disclosure meeting on January 6, 2020 and concluded his involvement with the delivery of his written recommendations on April 1, 2020. Those recommendations included that:
a. L needed to be in a classroom setting with his peers and should have structured social interactions with children of a similar age,
b. L needed a full relationship with each parent,
c. a Parenting Coordinator should be retained for a minimum of 12 months,
d. parental decision making should be shared or divided with the father being responsible for health care, school and recreation,
e. L should be free to bring his personal belonging with him when he travelled between his parents’ homes,
f. each parent should have personal therapy.
[37] Mr. Cross noted in the observations supporting his recommendations that there was no capacity for the parents to share custody and that L was “more regulated when he is in his father’s care and this assessor believes strongly that [the] parents need to consider what is in L’s best interests and capitalize on the fact that L appears [to] manage, regulate, and behave better in his father’s care.” He strongly recommended that counselling for L with Ms. Barclay and family counselling with Ms. Goldhar continue.
[38] On April 9, 2020, eight days after receiving Mr. Cross’ recommendations, the mother terminated both Ms. Barclay and Ms. Goldhar’s involvement.
[39] In Ms. Goldhar’s May 28, 2020 Report she sets out the following.
a. That she had been retained by both parents on September 4, 2019, to conduct reunification therapy.
b. L shared that he had told his father that he didn’t want to see him anymore because his mother asked him to, and that he had been nervous about whether his father would be upset with him.
c. The father was not upset with his son, only delighted to see him at the first reunification meeting in the fall of 2020. The father-son reconciliation was instant and required almost no intervention. Ms. Goldhar related that she had “never had a case where the child was happy and at ease with a parent after the first meeting. The reconciliation with [L’s] father was fast and spoke to the positive relationship that he has with Mr. C.”
d. In joint sessions between the parents, it was evident that Ms. Q had a great deal of anger and distrust towards Mr. C.
e. Ms. Q was unable to separate her feelings from L’s feelings. She was unable to validate L’s need for, or enjoyment of time with his father.
f. Ms. Q saw herself and L as “a unit,” and struggled to separate from L as evidenced by the co-sleeping and other incidents.
g. In contrast, L separated easily from his father, was well regulated in his care, and deeply attached to him.
h. The mother was misusing her decision-making authority.
[40] Ms. Goldhar’s Reintegration Therapy Report, supplemented by her evidence at trial set out a most concerning prognosis for L in his mother’s exclusive care, particularly after she terminated his personal therapist and the family counsellor. She wrote at page 8 of her Report that:
The pressure for L to have the identical views and feelings of his mother towards Mr. C places him in a position of rejecting his father to appease his mother which appears to have been a factor in the previous disconnect. Ms. Q also has a pattern of cutting [L] off from other relationships such as peers, and his therapists.
Ms. Q’s narrative that L has been traumatized by his father is very concerning and problematic. It is my view that Ms. Q’s lens of Mr. C is inaccurate and highly negative. I do not believe that Ms. Q values Mr. C as L’s father. Her marginalization of his role as L’s parent and her misuse of sole decision making has been problematic.
[41] Ms. Goldhar concluded that L’s relationship with his father was critical to his well being, as was a consistent course of therapy with one provider as L struggled with social relationships. She detailed how breaking a therapeutic bond was not in L’s best interests. She summarized that:
a. Mr. Cross had strongly recommended that Ms. Barclay’s services and her services needed to continue,
b. She remained concerned with L’s well-being as he has been withdrawn from his school, his friends and his father.
c. L’s prior refusal to see his father had been at his mother’s insistence.
Ms. Goldhar’s concerns were of such significance that she reported them to the Peel Children’s Aid Society.
Litigation History Resumed
[42] On May 1, 2020 the father tried to obtain a temporary Order on a Motion to implement some of Mr. Cross’s recommendations, particularly the terms for health care and school decision making so that L could continue counselling with Ms. Barclay, and he could be enrolled in the recommended school that fall.
[43] The strict Covid restrictions in May of 2020 for any motion but the most urgent proved fatal to the endeavor.
[44] By August 2020, the concerns set out in the reports of Mr. Cross, Ms. Barclay and Ms. Goldhar started to materialize. L was deeply affected by the loss of Ms. Barclay with whom he had created a therapeutic bond. His mental health began to deteriorate and the level of conflict with his mother increased, particularly around the issue of his return to school. L was desperate to go to a “real” school where he could be in a classroom, enjoy activities and have friends. His mother wanted him to stay in his home learning-based school.
[45] On August 12, 2020, a Family Service Worker with the Peel CAS received a call from L in which he reported extreme conflict between he and his mother. His mother had cancelled his therapy appointment with an alternative provider on August 4, 2020, and he was depressed and thinking of self-harm. L told the worker that “his mother treated him like a retard.”
[46] The FSW called Ms. Q who first confirmed much of what L had described, but then minimized her son’s distress. She assured the worker that she had the situation in hand.
[47] After a weekend at his father’s home, L refused to return to his mother’s care on August 14, 2020. He would continue to refuse to see her for the next four months. He demanded to go to the new school. To the parents’ credit L was ultimately enrolled in the new school, Wildwoods Academy, where he has thrived ever since.
[48] I accept the father’s evidence that throughout those four months of L’s rejecting his mother, he actively encouraged L to spend time with his mother. The father testified that he was genuinely distressed by their son’s refusal to go to the mother’s home. He knew what it was like to be rejected by L and to not see him for an extended period. He knew that his son was a black-and-white thinker and that not seeing a parent was his way to try to be heard by his mother and to avoid conflict. The father offered to go to reunification therapy with the mother, and he assured her that L would get much better if counselling was resumed with Ms. Barclay.
[49] Ms. Q refused all the father’s conciliatory overtures, certain that L’s views were not his own. She refused to allow L to see Ms. Barclay, and she refused to attend reunification therapy.
[50] In a letter dated September 18, 2020, Mr. C formally offered to try 50/50 parenting and to return to family counselling. Ms. Q refused. Instead, she brought a Motion for L’s immediate return. The CAS had remained involved with the family after L’s distressed call that summer. They offered a Family Group Conference. Mr. C agreed, and Ms. Q refused.
[51] In her Opening Statement at Trial, Ms. Q described this period as one in which “[n]ot only did [Mr. C] engage in a campaign of severe parental alienation, but he decided to wilfully disobey the Final Order and he unlawfully withheld L from [my] custody and care from August 14, 2020, until December 9, 2020.”
[52] L returned to his mother’s care on December 9, 2020 because Ms. Q was successful on her Motion heard December 7, 2020 to enforce the 2018 final Order; but she did not pick L up from his father’s home. She picked him up at the Hospital where he was taken overnight for mental health concerns after learning that he was being forced to live with his mother.
[53] There could have been a silver lining to the December 7, 2020 Motion. Additional to the Order that L return to his mother’s primary care was a further Order that the mother was required to reinstate L’s counselling with Andrea Barclay.
[54] In a clear breach of the December 7, 2020 Order, Ms. Q made no effort to re-engage Ms. Barclay.
[55] The December 2020 Order also requested the assistance of the OCL. The OCL accepted the request and on February 18, 2021 Ms. Johnson was appointed as counsel for L. Ms. MacPherson was shortly thereafter assigned as the clinical assist.
[56] The conflict between L and his mother worsened after the forced return. The mother would only permit access in accordance with the 2018 Order. On March 5, 2021 and again on March 30, 2021 L refused to return to his mother’s care after school. He communicated his refusal to the school principal at Wildwoods Academy who gave evidence at Trial as to how she consulted with the CAS to take appropriate steps in response to L’s clear distress.
[57] In April 2021 L again stopped seeing his mother, absolutely refusing to return to her home. Ms. Q’s response to her son’s March 5, 2021 refusal and the involvement of the school principal and the CAS was to bring a voluminous contempt motion against Mr. C. The motions Judge ordered that the Contempt Motion be heard by the Trial Judge.
[58] On May 19, 2021 Ms. Q amended her Motion to Change, seeking final Orders vacating and varying terms of the final Order so that:
a. The parties would contribute proportionately to the costs of L’s attendance at Family Bridges and any aftercare program.
b. That L would be returned to the mother’s care, with police enforcement as necessary
c. That Ms. Q would have sole authority to pursue “whatever remedy she deems necessary and/or appropriate to fully restore L’s relationship with her” including Family Bridges or any substitute program.
d. That L would not be informed of the terms of the Order by his father, and that Mr. C will not allow L to not comply with the terms of the Order.
e. “Commencing forthwith, Mr. C shall have No Contact, directly or indirectly, with L” for not less than 90 days.
f. That Ms. Q could confiscate and prevent L’s use of communication devices including but not limited to cell phones, pagers, Blackberries, tablets and computers even if Mr. C provides them.
And further repetitive terms emphasizing a period of no contact, that all of L’s personal documentation be vested with the mother and that the father’s consent for L to travel be dispensed.
[59] Although L was living exclusively with his father during this period, Ms. Q still had the custody Order from May 2018. She used it. She refused her son’s wish to return to Ms. Barclay for therapy. Moreover, there was now a barrier to L's return to therapy - the mother had reported both Ms. Barclay and Ms. Goldhar to their professional bodies.
[60] At this stage, L had been without his preferred therapist for a year. The mother refused to allow the father, with whom L was living, to engage a therapist for their son because he “would triangulate another professional into the conflict.”
[61] Feeling some pressure to provide counselling for L, the mother embarked upon a series of interviews with a potential counsellor, selectively providing her experiences and probing what services might be provided to her and her son. Throughout, the mother characterized her son as a severely alienated child. It remains unknown what therapeutic goals if any, were ever discussed.
[62] By the end of April 2021, the Peel CAS was so concerned with the mother’s failure to obtain therapy for L that they offered to pay for three sessions with an agency that they had recommended. When the mother declined, the CAS set a deadline of May 4, 2021 for Ms. Q – the legal decision-making parent, to engage counselling for L.
[63] The mother emailed the CAS on May 5, 2021 that she was going to proceed with a clinician recommended by Dr. Stoddard from Redpath, a service that specialized in children with autism spectrum disorder.
[64] On May 25, 2021, Ms. MacPherson delivered her first affidavit to the parents, setting out the role of the OCL and describing the extensive documentation reviewed, the collaterals interviewed and their three Zoom meetings with L to date in the exercise of that role.
[65] Ms. MacPherson related in her affidavit how Mr. C had sent them his parenting plan for L upon their request and that it was a full month later, on April 23, 2021, that Ms. Q finally sent in her parenting plan. It was only at this time that Ms. Q formally indicated that she no longer intended to move to Montreal.
[66] The May 25, 2021 affidavit clearly set out L’s views and preferences:
a. That he wants one week with each parent like he has been telling his Mom for the last five years.
b. That he wants to see Andrea Barclay like he has been telling his Mom for a year, and not one of her therapists.
c. He really likes his school and is doing well. He hated the school that his mother had him in.
d. He constantly argues with his mother about 50/50 and therapy and if it was up to his mother, he would be in his old school.
e. That his Dad is normal, respects his decisions and supports him hanging out with his friends and his Mom hates him having friends.
f. That his Dad is upset because “he wants me to go back to my Mom’s and I don’t want to.”
g. That “[m]y Mom is paranoid,” and is convinced that his Dad is spying on her and she hates him so much, and hates me spending time with him.
h. His Dad supports his relationship with his Mom and says that he has to see his Mom before too long
i. That he does not want to go back to his Mom until she starts respecting him like a human being, when she supports changing the schedule and him going back to see Andrea Barclay.
j. That when his Mom agrees to 50/50 and a therapist to help him, he will go back.
k. That he talks to his Mom at least three times a week but that she treats him like a 5-year-old kid and refuses to fix things. They always end up arguing.
l. He and his Mom get in fights when they talk about 50/50. Especially when she tried to make him feel guilty.
m. That she wants her new partner, Stephen to be his Dad.
n. He wants his parents to stop fighting, his Mom needs to change first and that he just wants to have therapy, “how effin hard could it be?”
[67] Getting therapy for L proved to be very hard.
[68] The Redpath Centre would not provide service without the consent of both parents. Ms. Q refused to inform Mr. C as to the details of the proposed therapy or agree to the therapy being closed.
[69] It was only on July 14, 2021, after the OCL had given notice that they would bring an urgent motion for therapy and the CAS advised that they would bring a Protection Application in the absence of therapy for L; that Ms. Q finally scheduled L for individual therapy on agreed terms.
[70] Meanwhile, the OCL had gain met with L on June 30th, 2021. They updated his views and preferences on August 3, 2021, just before L agreed to return to his mother’s care in the week before the trial. He agreed to return to his mother’s home because he understood that she had agreed to attend counselling with him. L continued to be consistent in his views and preferences, with emphasis on three terms: for the conflict to end, for 50/50 parenting time and for counselling.
[71] Throughout their involvement, the OCL found L’s expressed views and preferences to be clear, consistent, and strong. Professionals involved with the family whom they interviewed and/or received documents from, including therapists, physicians, the school principal at Wildwood Academy and the Peel Children’s Aid Society all shared that L had consistently expressed the same views and preferences to them: for the conflict to end, for 50/50 parenting time and for counselling.
[72] L ended up staying in his mother’s home throughout most of the next four weeks of trial because Ms. Q chose to exercise her summer vacation time during the Trial, thus cancelling out Mr. C’s parenting time.
Applicable Statutory Provisions
[73] This is a variation proceeding per section 17(5) of the Divorce Act R.S.C., 1985, c. 3. Section 16(1) of the Act states that:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. (Emphasis added)
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(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 cooperate, 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 cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Section 16(4) of the Act speaks to the issue of family violence which has been neither raised nor referenced in this case. Sections 16(5) and (6) of the Act go on to state that:
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Decision Making
[74] No one factor listed in section 16(3) of the Divorce Act is dispositive, and not every parenting dispute will contain every factor. Each parenting dispute must be decided on its own facts, in relation to the factors that are present with the primary consideration being the child’s physical, emotional, and psychological safety, security, and well-being.
[75] When the mother opened her case on August 9, 2021, she set out the terms sought in her Amended Motion to Change, and in a separate counsel argument, she asked for a finding of contempt with the strongest penalties available, including a term that L have no access or contact directly or indirectly with his father or his family pending further Order of the Court. She asked the Court to send L to the Family Bridges Program as the only possible remedy to the situation.
[76] She spoke at length about L being “instrumentalized” and “triangulated” into the conflict, referring to her son as a “mere puppet” who was “delivering a message.” She accepted none of L’s stated views and preferences, or actions, describing the latter as “contrived.” She argued that the OCL could not be relied upon because they did not appreciate that L had been severely alienated.
[77] Ms. Q consistently rejected L having his own views and preferences unless they accorded with her own, even when related through his counsel with a clinical assistant. She admitted that in 2019 she had asked L to call his father and tell him that he did not want to see him anymore because she believed that it was in L’s best interests to do so. She agreed that she had re-enrolled L in a home learning school after Mr. Cross had made a strong recommendation that he attend Wildwood Academy, and L had begged to go to the new school. She was nonchalant about removing therapy for her son, stating that she could go to therapy for them both.
[78] Any person or agency who did not agree with the mother, including the OCL and the CAS was labelled by her as having been fed disinformation by the father and “triangulated” into the conflict. In her world view, the father-son relationship had to be dissolved because only the father was responsible for L’s rejection of her. If L and his father agreed on something, then it must be a lie. Anything that fell short of providing her with absolute authority over decision making, parenting and L’s schedule was unacceptable.
[79] Such actions belie any potential for the mother to support the development and maintenance of L’s relationship with his father, to acknowledge L’s views and preferences, to understand his needs and developmental stage, or to even understand L’s complex needs as separate from her own.
[80] When the mother fired both Ms. Barclay and Ms. Goldhar in April of 2020, and then refused a closing interview between Ms. Barclay and L, she placed her perceived litigation interests ahead of her son’s and caused him actual harm. This was a misuse of her position as a sole decision-making parent. When she delayed replacing any counselling support for over a year, it became in my view, an abuse of her decision-making responsibility. I find that the mother has been unable and unwilling to protect L’s emotional and psychological safety, security, and well-being pursuant to section 16(2) of the Divorce Act.
[81] L has also been harmed by his mother’s determination to remove his father from his life, beginning with the proposed move to Montreal. L tried to avoid the resulting conflict by rejecting his father, and then later, by rejecting his mother. Over time, he learned that counselling was the bridge between those separate lives, but in April of 2020 his mother removed that bridge.
[82] L is still willing to build a new bridge with his mother, but her steadfast refusal to attend reunification therapy and in its stead, to engage in high conflict litigation has over time, made a terrible situation potentially unrecoverable.
[83] The parties agree, and I find that joint decision making is simply not an option in these circumstances. Although the parents have some history of positive communications and shared decision making, such as L’s enrolment in Wildwoods, these were the rare exceptions within their troubled litigation history.
[84] For L, the bottom line is that nothing that he can say or do will persuade his mother that she needs to change. His idealizations of self-harm, assertions that he would run away if forced to return to her home, requests for therapy to cope with the situation, or expressions of need for his father were never heard by his mother. When in May of 2021 L became physically aggressive with her, threatening to kill her, she took the statement literally, as part of his father’s plan for her, and not as the agitated uttering of an emotionally charged pre-teen beyond himself with the pain of not being heard by his mother.
[85] The father opened his case with a request for final decision making so that he could meet L’s counselling and medical needs. He presented as insightful, open minded and attuned to the complications of adolescent.
[86] He took responsibility for his role in the conflict. He recounted his personal turning point when he learned about the “theory of the mind” during the reunification counselling: a therapeutic understanding of humans having a natural tendency to think that others perceive the world as they do. He explained how it gave him a powerful insight into L’s separate experience of events from his own, and how it informed his subsequent determination to find a middle ground for his son in which both parents could be in his life, even when they disagreed.
[87] I found the father to be balanced in his evidence. He agreed with the mother that L’s negative behaviour towards her was unacceptable and that when L is emotionally charged, he can misinterpret his mother’s discipline. He explained how their son’s “black-and-white thinking” required a varied, well timed, and flexible parenting approach to avoid escalation.
[88] In turn, L views his father as treating him age and developmentally appropriately. He views his father as supportive and he clearly wishes to continue to reside with him.
[89] In these extreme parenting cases, it can be difficult to avoid being drawn into a “good parent v bad parent” dynamic. Parenting conflict is complex, often generational and highly fluid. Extreme cases rarely develop without a mixture of responsibility. But here, I find that only one parent meets the expectations to be awarded sole decision-making as set out in section 16 of the Divorce Act.
[90] Order to issue granting the father sole decision-making responsibility.
No Order for a Parenting Schedule
No Consent Order for Week about Parenting Schedule
[91] Ms. Q agreed on Friday September 3, 2021 - the very last day of trial – that she would change her position from no father-son contact, to week about parenting. I requested that the parties reduce the consent to writing, and I provided the balance of the day to complete the task.
[92] Parties and counsels returned just before the close of the court day to advise that there was no consent to a parenting schedule, so I timetabled the receipt of written closing submissions. Although counsels indicated that they would continue to work on partial Minutes of Settlement, none were ever received.
[93] The mother’s counsel confirms that there was no written agreement for parenting, but now asks that I make a final Order for week about parenting based on her representations that the matter had resolved within solicitor’s correspondence. The father’s counsel advises that there was a tentative agreement for week about parenting but that it was conditional on the mother attending reunification counselling. When the mother refused, the parenting schedule remained to be judicially determined.
[94] I was not provided with Ms. Haber’s correspondence in which she states that there was a Consent. Instead, her office provided me with a portion of the transcript from the January Trial continuation in which I was attempting to focus Mr. Haber’s cross examination of the father on the factors in section 16 of the Divorce Act, and away from the conflict between the counsels. A redirection of counsel during cross examination is not evidence of a written agreement between the parties.
[95] In any event, it is well established that the Court is the final gatekeeper of any consent Order, and may choose to accept or reject a purported settlement; see Pastoor v. Pastoor, 2007 CanLii 28331 (ONSC), in which Justice Perell quotes Geropoulos v. Geropoulos, 1982 CanLii 2020 (ON CA) setting out that courts have the discretion to not enforce a settlement that it considers to be unreasonable, that would result in an injustice or where there is good reason not to enforce it.
[96] I find that there is no consent to an Order for week about parenting, and even if there were such a written agreement, that there is good reason not to give it any effect. The evidence led by the OCL persuades me that L‘s views and preferences have significantly changed, are reasonable and independent and when considered within the context of the Post Trial events, I find that there should be no Order for parenting time.
Post Trial Events
[97] On September 17, 2021 L refused to return to his mother’s home. The refusal caused another upheaval of conflict between the parents and an unsubstantiated claim that L had threatened self harm. Since then, L has resided with his father on a fulltime basis. He has only seen his mother during therapeutic sessions.
[98] The OCL has continued to meet with L and they spoke with him on four occasions by Zoom: September 15, 2021 at the father’s home, October 4, 2021, November 19, 2021, and January 20, 2022 at his school. They learned that L’s position had changed.
[99] During the September 15, 2021 meeting, L described how the relationship with his mother had irrevocably broken down. He described their relationship as “unbearable”, and that there was “no relationship left” with his mother. He stated he “cannot go back” because of the arguments, with the main issue being her refusal to allow him to take his phone to her house, preventing him from communicating and socializing with his friends. He insisted that “therapy needs to get going” and he expressed dissatisfaction with the OCL because the court case was still ongoing.
[100] The OCL reports that in their October 4, 2021 meeting with L he was agitated and swore a great deal. He stated to them that he wanted to “end it” that he “hates himself”, that his “well-being is not great” and that he has had “more stress in 12 years of living than most people do in 80 years”. He qualified his request for “50/50” as being conditional on his mother not being “insane”, and he repeated that he refuses to see her until she respects his opinion, stops arguing with him, lets him have his phone at her house and they go to family therapy. He was not finding the individual therapy that his mother had arranged to be helpful.
[101] The OCL sent an email to the parents on October 6, 2021 setting out their concerns regarding L’s presentation two days earlier. After making further investigation, the OCL concluded that L was not receiving the therapy that he needs, and quite unusually for a person of his age, desperately wanted.
[102] Meanwhile, Ms. Q had moved to reopen the Trial and continuation dates were set for January 24 and 25, 2022. She made counselling decisions for her and L with very limited information to the father. She chose Dr. Stoddart as the therapist to provide therapy for L and her to work on their relationship, but not in the form of reunification counselling. As time progressed, it proved difficult to ascertain what, if any therapeutic goals were being pursued because neither the mother nor Dr. Stoddard would share the terms of the therapeutic engagement.
[103] Nonetheless, the father agreed to bring L to the sessions. He asked for an intake session with Dr. Stoddard and a copy of his service contract, but Dr. Stoddard declined, despite having earlier met with the mother. Dr. Stoddard did provide the father with a brief overview at the end of each session. No contract for Dr. Stoddard’s services was ever provided to the father, or the Court; and the mother stated for the first-time on January 25, 2022 that there was no contract. I do not find her statement in this regard to be credible.
[104] The OCL suggests that the father’s actions over the fall of 2021 with respect to Dr. Stoddard were just as unreasonable, but I find otherwise. The evidence heard on January 24 and 25 2022 persuades me that the mother was continuing a well-established pattern of screening and grooming family therapy professionals before they were allowed to meet with L or his father. Only those who are primed with her narrative of a severely alienated child are engaged.
[105] By December 2, 2021, L’s views and preferences had shifted from a 50/50 schedule between his parents to living with his father and having no set schedule with his mother. He was frustrated with the counselling, which was not reunification counselling, but instead, from his perspective, was for the purpose of changing his mind about how he viewed his mother because she was doing what she thought was right. He concluded that his mother would never change.
No Parenting Schedule Decision
[106] The mother proposes a draft Order of 50 paragraphs particularizing an alternate week schedule, a holiday schedule, educational decision making, health and medical decision making, individual therapy for L, family therapy, emergency care, extracurricular and religious decision making, residence and communication. It is a recipe card for a never-ending conflict.
[107] The father proposes that parenting time between L and his mother be in L’s discretion. He submits that the final Order must reflect finality and that anything short of parenting time at the discretion of L will invite the mother to continue litigation indefinitely, as she will allege that the father is alienating L and breaching the Court Order.
[108] The OCL takes the same position on behalf of L that any parenting time Order with his mother would be detrimental to L’s physical, emotional and psychological safety, security and well-being for the same reason: the conflict will continue, and L will be harmed by it.
[109] L is now 13 years old and in Grade 8. He has repeatedly expressed to his counsel that he wants the conflict between his parents to end. He has already expressed frustration through his OCL counsel and the FSW with the Peel CAS that the “cycle will go on for the rest of my life.”
[110] This is an unusual situation in which I must decide whether a 13-year-old can set his own parenting schedule. In the ordinary course, I would not consider such a proposal, but here, the risk of a parenting schedule perpetuating conflict is significant.
[111] The mother is extremely litigious. She has demonstrated an unqualified propensity to litigate every real or perceived infraction. As amply demonstrated by her evidence at trial, and confirmed within her 120 page, single spaced, 520 paragraph closing submissions, she has lost all ability to hear or proportionately respond to her teenage son’s best interests. In her cross examination during the trial continuation the mother refused to rule out another contempt proceeding if there was a breach of the parenting schedule.
[112] L has valid concerns regarding his mother using a parenting Order as a platform for her next round of litigation. He has been harmed by the litigation, foremost by having no access to therapy from April of 2020 until July 14, 2021. He is at risk of further harm.
[113] During the trial continuation the mother remained adamant that she will not engage in any model of reunification therapy. She remains convinced that her son has been alienated from her, when in fact, for a significant period she was the favoured parent, and the father was the targeted parent.
[114] That situation was corrected by family and individual counselling. The mother terminated those services which then set the stage for L to reject her in August of 2020. The father offered to return to the counselling which had proven to be very successful, and the mother refused. She chose litigation.
[115] In A. (M.A.) v. E. (D. E.M.)], 2020 ONCA 486, 152 O.R. (3d) 81 the Ontario Court of Appeal confirmed that “Canada has adopted the Conventions of the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of a child’s best interest – which is engaged in all child related matters – must incorporate the child ‘s views.”
[116] In SS v RS, 2021 ONSC 2137, at paragraphs 26 to 28, Justice Mandhane of this Court states “[a] human rights-based approach to the amended Divorce Act calls on the Courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall wellbeing.”
[117] L has had a particularly difficult childhood. His patience with his mother and the Court system has run out. His fear that any court ordered parenting schedule will be the next platform from which his mother will attack his father is reasonably held. He is willing to go to counselling with his mother. His belief that their relationship will improve over time if his mother is willing to change is also reasonably held.
[118] It is not unprecedented to accede to the wishes of a mature 13-year-old who does not wish mandated contact with a parent. The Court of Appeal in DeMelo v DeMelo, 2015 ONCA 598, found that children aged 15 and 13 were of sufficient age and maturity to warrant judicial respect for their positions. They were not forced to see their father against their wishes. In VL v ML, 2019 ONSC 7367, the Court respected the wishes of a 13-year-old not to have any contact with a parent.
[119] I find that this is an appropriate case in which no Order for a formal parenting schedule should be made. A court ordered parenting schedule risks generating more litigation because Ms. Q will perceive any departure from its strict terms as a basis upon which she can attack the father’s parenting. She continues to refuse any responsibility for her role in the breakdown of her relationship with her son.
[120] L has already suffered considerable harm as a child caught in the conflict between his parents for the last six years. In my view, his wish for it to end must be respected, and in these unusual circumstances is best facilitated by leaving parenting time with his mother to be determined in his discretion.
[121] Final Order to issue that parenting time between L and his mother shall be at the discretion of L in accordance with his views and preferences
Table Child Support
[122] I learned near the end of this proceeding that the father continues to be obliged to pay table child support to the mother pursuant to the May 7, 2018 final Order despite L residing in his care for lengthy periods after August 14, 2020. The mother has not consented to suspend those payments.
[123] Although this Motion to Change only addresses parenting issues, the father asks for an Order under Rule 2 of the Family Law Rules ending his child support obligations if L continues to reside in his care under the terms of this Order, and that any arrears accrued under the 2018 final Order for periods when L has resided with him, not be enforced pending a further Motion to Change.
[124] I am prepared to make the Order sought, including the requested Order that the mother pay child support starting March 1, 2022 in an amount to be agreed or determined within the anticipated Motion to Change.
Orders to Issue pursuant to Father’s proposed Draft Order
[125] The father’s proposed draft Order contains the terms within these reasons for sole decision making, incidents of decision making such as obtaining government documents, the mother’s parenting time to be in L’s discretion, and child support.
[126] Final Order to issue per paragraphs 1 to 10 of the father’s draft Order.
[127] Regarding the proposed paragraph 11, it is unnecessary to dismiss the Contempt Motion against the father because it was withdrawn during the Trial. Costs are payable on the withdrawal.
[128] I find that the mother is in breach of the Order of December 7, 2020 regarding commencement of therapy with Ms. Barclay. Order to issue per paragraph 12 of the draft Order.
[129] The relief sought in the mother’s May 8, 2019 Motion to Change is dismissed.
[130] I decline to make the Order sought by the father that the mother must obtain my leave before bringing any Motion to Change or Motions relating to parenting and decision making, including contempt motions. However, I do Order that the mother must pay the costs of this proceeding before taking any steps in a related proceeding pursuant to Rule 1(8) of the Family Law Rules.
Costs
[131] The respondent father has been the successful party. His costs submissions are to be served and filed on or before April 4, 2022. Responding submissions by the applicant are due on April 22, 2022 with reply, if necessary, on April 29, 2022. If the OCL seeks costs, they shall have the same timeline as the respondent. Costs submissions are strictly limited to eight pages exclusive of any Offers to Settle or a Bill of Costs.
McGee J.
Released: March 21, 2022
COURT FILE NO.: FS-16-86329-01
DATE: 2022 03 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.Q
Applicant
- and -
R.C
Respondent
REASONS FOR JUDGMENT
McGee J.
Released: March 21, 2022
[^1]: Page 12 of the March 27, 2020 Report