OSHAWA COURT FILE NO.: FC-19-1195-00

DATE: 20220406

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

JESSE RUSSEL WILSON Applicant

– and –

AMY LEIGH SINCLAIR Respondent

COUNSEL: Brian Ludmer, for the Applicant John Schuman and Zakiya Bhayat, for the Respondent

HEARD: November 18, 22, 23, 24, 29, 30, December 1, 2, 3, 2021, January 4, 5, 6, 7, 11, 12, 13, 14, 2022, February 1, 2, 3 and 25, 2022

TRIAL DECISION

L. E. FRYER, J

I. Introduction

[1] The parties, Jesse Wilson (the father) and Amy Sinclair (the mother), have two children together: Bayley Dawn Wilson born June 20, 2007 and Ryker Russel Wilson born March 10, 2020. This trial related almost exclusively to the issue of the repair of Jesse’s relationship with the two children.

[2] At present, the children attend at their father’s home three times per week for several hours. However, they have little or no meaningful interaction with him. They stay in one room at the front of the house. They don’t speak with him. They refuse to eat his food or use his washroom. They don’t participate in any activities or games that he provides for them. They refuse to get in the car with him except to be returned to Amy’s home. Until very recently, they wore their COVID-19 masks in his presence.

[3] The parties agree that for the most part Jesse had a good relationship with the children prior to their physical separation in March 2019.

[4] What caused such a decline in Jesse’s relationship with the children? Who is responsible? Why have the past therapeutic interventions failed this family? What can be done now to repair this relationship? These issues were canvassed in extensively in almost 40,000 pages of documentary evidence and five weeks of trial time.

[5] Jesse believes that Amy is primarily responsible. She is engaging in parental alienation of the children. Although she states that she is committed to his having a good relationship with the children, her actions run contrary to this. She fails to follow court orders. She ignores the recommendations of the professionals that have been jointly engaged by the family. According to Jesse, Amy remains steadfast and rigid in her belief that she has done everything she can, and it is up to Jesse to change, not her.

[6] Jesse is asking the court to order a protective separation; a re-set period of 90 days when the children will reside in his sole care and have no contact with Amy. He and the children will participate in a multi-day intensive program offered by either Turning Points for Families or Family Bridges. Jesse stresses that given the track-record of failed therapies and the ages of the children, there is “insufficient runway” to contemplate an alternate remedy if there is to be any chance of a meaningful and positive relationship between him and the children.

[7] Amy acknowledges that the children’s relationship with Jesse is poor. She states that it is in the children’s best interests to repair that relationship. While she admits that she is “part of the puzzle”, her view is that Jesse has much more responsibility for the negative state of affairs.

[8] Amy believes that Jesse moved too quickly to try to integrate the children into his relationship with his partner, Christine Upton, and her two children. This led to the children feeling confused and believing that they were no longer a priority for their father.

[9] Amy also points to what she describes as a history of Jesse’s aggression and abuse that she says has affected the children and is contributing to their current estrangement from Jesse.

[10] Amy stressed that Jesse and his lawyer are engaging in a kind of “parental alienation crusade”. She believes that many of the experts involved with their family - although retained jointly - did not approach their mandate impartially but were influenced by Mr. Ludmer and Jesse from the outset.

[11] At this point, Amy feels that their family has never really had a chance for an independent therapeutic intervention. Amy is opposed to the protective separation and intensive program requested by Jesse. She acknowledges that the family needs professional assistance and she has proposed a program run by Alyson Jones who is located in West Vancouver.

[12] As will be seen in the analysis to follow, there was some support for the position taken by both of the parties.

[13] The diametrically opposed positions of the parties – that the other was the source of the problem and therefore needed to change – were reflected throughout. This engendered what can be described as “litigation parenting”. Even simple decisions regarding the children had to be analyzed and run by the lawyers to see how they fit with their “theory of the case”. Amy and Jesse documented and/or recorded their interactions with each other. Jesse entered over 7,000 pages of Our Family Wizard (“OFW”) messages alone. Jesse prepared minute by minute notes of his visits with the children that were delivered to Amy and to the professionals working with the family. Amy prepared an Excel spreadsheet with supporting bar graph to demonstrate Jesse’s percentage non-attendance at the children’s extra-curricular activities. She also surreptitiously recorded all of the experts jointly engaged by the family contrary to their retainer contracts or their express requests.

[14] This conflict spilled over into the work being done by the therapists retained by the family and the Durham Children’s Aid Society (“the Society”) which became involved later. Legal counsel for the Society had to get involved more than once to “correct the record”.

[15] In all of this litigation noise, the children – Bayly and Ryker – and their needs have to some extent been lost.

[16] Both parents say that it is important for Bayly and Ryker to have a healthy, warm and loving relationship with Jesse. They also both state that professional assistance is required to accomplish this. My task is to attempt to answer the questions posed above and to determine which of the programs suggested will best meet the needs of the children.

II. Credibility

[17] This was a very fact driven case and the credibility of the parties in particular was an important consideration. I will therefore comment on their credibility generally from the outset.

[18] In the recent decision of McBennett v. Danis 2021 ONSC 3610, Chappell J. sets out an excellent and comprehensive summary of the law with respect to credibility:

[40] Dealing first with the law respecting the assessment of credibility and reliability, as I recently discussed in Kinsella v. Mills, 2020 ONSC 4785 (S.C.J.), the caselaw has established that this process is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100 (C.A.), at paras 18-19). The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness' evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paragraphs 51-56; R. v. Boutros, 2018 ONCA 275 (C.A.); McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).

[41] Despite the challenges inherent in the task of assessing reliability and credibility, the caselaw has articulated numerous factors that the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9; R. v. Norman, 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.); R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff'd 2012 BCCA 296 (C.A.); Brar v. Brar, 2017 ABQB 792 (Q.B.), at paras. 9-16; R.v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21 and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538 (S.C.), at paras. 34-40, these considerations include the following:

1. Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).

2. Was there a logical flow to the evidence?

3. Were there inconsistencies between the witness' testimony and the documentary evidence?

4. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?

5. Is there other independent evidence that confirms or contradicts the witness' testimony?

6. Did the witness have an interest in the outcome, or were they personally connected to either party?

7. Did the witness have a motive to deceive?

8. Did the witness have the opportunity and ability to observe the factual matters about which they testified?

9. Did they have a sufficient power of recollection to provide the court with an accurate account?

10. Were there any external suggestions made at any time that may have altered the witness’ memory?

11. Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10).

12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?

14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).

[19] Generally speaking, I found Jesse to be direct, forthright and careful when giving his evidence. There were certain issues around which he was avoidant and found it difficult to make admissions against his interest. Overall, his position in the litigation aligned appropriately with his narrative and documentary evidence.

[20] I also found Amy to be generally forthright and direct. Amy was particularly cautious when giving her evidence and in certain situations, was patently uncomfortable at being asked reasonably basic questions for which she did not feel prepared particularly when against her interest.

[21] Amy’s position contained a significant inconsistency: she stated that she supported Jesse having a relationship with the children but at the same time described him having had “a pattern of aggression and violence” and that she and the children did not trust him. This disconnect was reflected in her evidence.

[22] Amy’s domestic violence narrative developed much later in the litigation and this raised questions with respect her credibility that will be addressed further below.

[23] Amy relied very heavily on what the children reported to her following their parenting time with Jesse and this wove its way into her own narrative. She was frank that she virtually always preferred the children’s version of events to Jesse’s the latter of which she received by way of his detailed OFW notes. I found that Amy was overly ready to accept what the children reported to her even when it was not always factually grounded.

[24] These concerns led me to generally prefer Jesse’s evidence where there was a contradiction.

III. Background

[25] Jesse is 46 years old and Amy is 45 years old.

[26] Jesse works full-time for Safran Landing Systems as a Quality Inspector.

[27] Amy works full-time as an Inclusion Services Coordinator for the City of Oshawa. She has training in non-violent crisis prevention intervention among other things. She had previously worked for Grandview Children’s Centre from 2012 to 2018.

[28] Jesse and Amy met through Jesse’s brother. They dated and then started living together around November 18, 2004. They discussed getting married but never did.

[29] Jesse initiated the parties’ separation on July 2, 2016. He was emotionally and possibly physically involved with a woman named Connie around this time. After the separation, the family continued to live together in the home until March 15, 2019 when Jesse moved out. If the children were aware of their parents’ separation before that time, it did not become real for them until Jesse left the home. Amy’s parents, Bob and Wendy Sinclair, with whom she is close did not know the parties had separated until Jesse told them around this same time.

[30] Following their separation, the parties entered the collaborative process in August 2018. In January 2019, they met with a mediator to work on a parenting plan. By the spring of 2019, they had agreed that Amy would buy out Jesse’s interest in their jointly owned home and they would have shared parenting of the children. As a result of this agreement in principle (no formal agreement was signed), Jesse moved into a basement apartment in his mother’s newly renovated home nearby.

[31] Jesse started his relationship with his current partner, Christine Upton, in December 2018. Jesse and Christine moved in together in the summer of 2019.

[32] Christine has a Diploma in Early Childhood Education. She has worked at the YMCA and also for Ontario Shores. She currently works for the Durham District Schoolboard developing an Indigenous education program.

[33] Christine has two children: Abbey is age 13 and Maddy is age 10. Christine and her children’s father have a good relationship; Christine also has a good relationship with his new partner. Christine and her former partner have a flexible, shared parenting arrangement for the children.

[34] Jesse introduced Bayly and Ryker to Christine and her children in April 2019. They had a number of get togethers at Jesse’s home and went away for the weekend together to a ranch. Christine went with Jesse to watch some of the children’s extra-curricular activities. The initial visits seem to go relatively well with Bayly and Ryker getting along well with Christine and her children. Christine used to play rep-hockey, and this was a common topic of interest for her and Ryker.

(a) History of Jesse’s Parenting Time Post-Separation

[35] In the few months after Jesse moved out of the home, he had the children in his care roughly half of the time. The children stayed overnight in his apartment in his mother’s home and he was participating regularly in their activities. However, there were signs presaging the difficulties to come.

[36] The parties had names for certain defining incidents as well as for certain “eras” in Jesse’s parenting time with the children which I have adopted. I have outlined some of these key events and eras for the chronology below and will address some of the particulars later on in my analysis.

[37] The Screen Door Incident: On July 20, 2019, Jesse and Christine came to Amy’s home to pick up Bayly and Ryker. Jesse waited in his car for an hour for the children to come out. The children apparently felt that he had cancelled an earlier visit and therefore they were entitled to do the same. Jesse sent text messages to Amy, but she advised that he needed to work it out with the children. Ryker was playing in the driveway laughing and saying that he was not coming for the visit. Jesse went to the front door and there was a heated conversation between him and Amy. Amy stated that Jesse should respect the children’s wishes not to go for parenting time. Christine, who was still in the truck, yelled that the house needed to go up for sale (the contemplated transfer had not taken place). Jesse punched his fist through the screen door to open the latch. Both of the children were swearing at him. The police came but no charges were laid.

a. No Parenting Time Era

[38] The children became more oppositional and defiant to Jesse, his mother and Christine during the parenting time that Jesse did have with them. Jesse did not have the children for an overnight visit after the screen door incident.

[39] Amy’s new lawyer, Martin Tweyman wrote to Jesse’s then lawyer on July 26, 2019 terminating the collaborative process. In this same letter, Mr. Tweyman stated: “…the current access schedule is not working and is unacceptable. Your client’s actions and approach to the children have resulted in the children being unwilling to go with him currently. This may change but not in the immediate future….”.

[40] Mr. Tweyman also wrote: “[p]lease advise Mr. Wilson and Ms. Upton not to attend anywhere the children or my client are or I will be obliged to obtain a restraining Order given his violent actions and threats at the home on Saturday July 20-, 2019 [sic]”.

[41] From July 14, 2019 to January 2020, Jesse had no parenting time at all with the children. Through her lawyer, Amy advised that in denying parenting time she was “respecting the children’s wishes”.

[42] On January 9, 2020, the parties attended for a Case Conference before Justice Scott who noted “the very complex disintegration of previous cooperative parenting plan post separation, complete interruption of parenting time” between Jesse and the children. The parties’ consented to an order at this conference to engage in reunification therapy, to retain an assessor pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[43] After this conference, Jesse had some brief parenting time that quickly diminished in frequency until by April 2020, with the commencement of the pandemic, his parenting time with them terminated.

[44] In April, the parties finalized the engagement of Marci Goldhar, MSW to conduct a s. 30 CLRA parenting assessment.

[45] Jesse obtained a date for an urgent conference before Scott J. on June 4, 2020. He and Amy consented to an order to immediately commence reunification therapy with Jeff Packer, MSW and for Jesse to have parenting time three times per week (two four-hour visits and one six-hour visit) among other things. This order for parenting time has remained in place up to the trial.

[46] Jesse had his first visit under the new order on June 9, 2020.

b. Parenting Time on the Front Lawn Era

[47] When the children attended for parenting time, there were numerous issues. The children refused to enter Jesse’s apartment at his mother’s home or even go into the back garden. They insisted on remaining on the front lawn or on the curb with their backs deliberately turned to Jesse. Both children used incredibly rude and denigrating language to Jesse, Christine and their paternal grandmother. Ryker in particular was physical with Jesse and would throw objects at him.

[48] The children would also typically leave Jesse’s home after a short period of time to be picked up by Amy. But for a few exceptions, the children were not returned to Jesse’s care for the balance of his parenting time.

[49] On September 8, 2020, Jesse and Christine moved into their current home. The home has four bedrooms as well as a pool and jacuzzi in the backyard.

[50] The children continued to refuse to leave the front garden regardless of the weather conditions. Amy continued to pick up the children shortly after the visit started when they called and requested it. Later, the children would simply leave Jesse’s home and start to walk back toward Amy’s. It is roughly a one-hour walk, or approximately 6.5 kilometers from Jesse’s home to Amy’s home on busy streets. Jesse would walk behind the children to keep them safe. Amy would frequently meet the children on the way and would take them home. Jesse would be forced to call Christine to get a ride back home.

[51] Amy’s father, who lives in Port Perry, started to sit in his car around the corner from Jesse’s home during his parenting time or in a nearby plaza.

[52] In June 2020, the parties started working with Jeff Packer on reunification therapy. That process was not successful, and Mr. Packer terminated his engagement around October 2020 after first calling the Durham Children’s Aid Society.

c. Kids in the Music Room Era

[53] On December 24, 2020, the children entered Jesse’s new home for the first time.

[54] In the months that followed, the children would come into Jesse’s home for some period of time but would remain in the music room. They refused to remove their COVID-19 masks, their coats or their boots and would at times deliberately track snow and salt into the home and grind it into the floors. They continued to avoid speaking with Jesse. They refused to eat food at his home or to use his bathroom. The children would remain for a short period of time before leaving to walk back toward Amy’s home as before.

[55] Starting around January 2021, Christine would make an effort to leave the house when Bayly and Ryker were coming over. She described how she would drive to a plaza and work on her computer in the car for the duration of the visit.

[56] In April 2021, Jesse asked Amy to stay in the driveway of his home to prevent the children from leaving early which she agreed to do.

[57] On May 26, 2021, I made an order on consent that the parties would participate in a clinical intake assessment with Shazeeda Haroon and Greg Koval to determine if the family was a good candidate for further reunification therapy. The order also contained specific and detailed terms regarding each party’s commitment to the children having a healthy relationship with both of their parents.

[58] In the summer of 2021, Ryker went swimming a couple of times in the pool at Jesse’s home. This was described as a “glimmer of hope” by the s. 30 assessor, Marci Goldhar.

[59] By the time of the trial, the children were remaining for their parenting time. They would allow Jesse to drive them back to Amy’s home at the conclusion of parenting time but otherwise would not enter his car. The incidents of physicality and extremely denigrating language that marked the early “eras” had diminished but the children remained steadfast in their refusal not to engage with their father in any meaningful way.

d. Conclusion of Trial

[60] Each party gave an update as to the children’s situation at the end of the trial.

[61] Jesse reported that the children are staying for their parenting time. They now sleep for much of the visit on the couch in the dining room. They will still not eat food in his home or use the bathroom. When Jesse enters the room, the children stare at the floor, leave their ball caps on, turn their chairs around so that their backs are facing him. Up until the last days of the trial, they continued to wear their masks in Jesse’s presence, though there is no evidence that Jesse and his household were not following all pandemic-related public health guidelines.

(b) Reintegration Therapy – Jeff Packer

[62] The parties had agreed to retain a reunification therapist at the conference before Scott J. on January 9, 2020. Mr. Packer was contacted in April 2020 initially by Jesse who described the contact problems he was experiencing with the children. Amy was not in agreement with Mr. Packer and it took until the urgent conference before Scott J. on June 4, 2020 for an order designating him to be made.

[63] Jeff Packer has a Master of Social Work and is a member of the College of Social Workers. He worked at the Durham Family Court Clinic for twelve years doing assessments, treatment and family therapy. He was involved in developing the cooperative parenting program offered by the John Howard Society. Mr. Packer has been offering reunification therapy for some time.

[64] The family attended for a number of sessions over five months with Mr. Packer. The process was not a success and likely doomed from the start.

[65] Mr. Packer appeared to feel that because his mandate had been court ordered, it was appropriate to be more directive from the outset particularly with Amy. He took issue with Amy’s failure to make payment on time and cancelled the initial session even when she ended up transferring funds the same day. He was critical of Amy being late to the first session when she explained that she had gone to the wrong parking lot at the park. Although Amy might have been resisting engagement or attempting to control the process, I felt that Mr. Packer could have “picked his battles” in the hopes that Amy would participate with commitment. In a real error in judgment, Mr. Packer put Brian Ludmer’s book on the ground in front of Amy as a suggested parenting resource; he acknowledged in cross-examination that this might make Amy feel uncomfortable. As the sessions progressed, Mr. Packer and Amy essentially engaged in a contest of wills. While Amy presented as a determined and strong-minded person, Mr. Packer had a professional obligation to try to remain above the fray.

[66] When it became clear that he was not making headway with the family, Mr. Packer contacted the Durham Children’s Aid Society. He reported to Intake Worker Virginia Bannister that “it was an injustice to the system” that Amy was permitted to breach court orders and that he had never witnessed such abuse by children toward their father. Mr. Packer then wrote a report to the Society outlining his various concerns and suggesting that custody of the children should be transferred to Jesse. Pamela Williams is a Service Supervisor with the Society found Mr. Packer’s report to be very one sided and described him as forceful and personally vested in getting his point across.

[67] Mr. Packer wrote a report for the parties dated November 15, 2020 to explain his rationale for ending his services. He summarizes it by saying that it was:

Due directly to Ms. Sinclair’s consistent refusal to follow the court direction, lack of sincere participation in a cooperative manner, her repeated failure to follow our agreed upon guidelines (see Consent and Disclosure Agreement – attached) and her apparent inability to appropriately direct her children, the writer has resigned from the role of reconciliation therapist.

[68] Mr. Packer could have taken a different more neutral approach with this family, particularly at the beginning of the therapeutic process. As I will explore further in these reasons, I am not sure that ultimately this would have made a difference, but it might not have alienated Amy from the process quite so quickly. Despite these concerns, I was prepared to give weight to some of Mr. Packer’s observations when supported by other evidence.

(c) Section 30 Assessment

[69] On February 14, 2020, the parties consented to Marcie Goldhar being appointed to conduct a parenting assessment pursuant to s. 30 of the CLRA per Scott J.’s earlier order dated January 9, 2020.

[70] Marci Goldhar has a Master of Social Work. She has never been a member of the College of Social Workers. Ms. Goldhar started working in the field of child protection. She then moved over to the Office of the Children’s Lawyer (“OCL”) doing investigations pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. She started her private practice in 2013. Ms. Goldhar estimated that she had done between 50 to 100 s. 112 reports for the OCL and approximately 20 to 30 s. 30 CLRA assessments.

[71] Ms. Goldhar is familiar with issues of parental alienation. She has worked with Dr. Barbara Fidler who the parties acknowledged is known to have expertise in this field and Ms. Goldhar is part of Dr. Fidler’s practice group dealing with parent-child contact problems. Ms. Goldhar also provides reconciliation therapy.

[72] Amy did not sign Ms. Goldhar’s retainer agreement until April 20, 2020 and she did not pay the required retainer funds. Ultimately, Jesse paid Amy’s share of the retainer and he is advancing a claim for repayment.

[73] After some initial work on the assessment, Ms. Goldhar put the process on hold for a period of time while the parties pursued reconciliation therapy with Jeff Packer. Marci Goldhar and Jeff Packer communicated regularly regarding the Wilson-Sinclair family during the period that their engagements overlapped.

[74] Amy raised a number of concerns about Marci Goldhar’s independence and competence.

[75] Amy suggested that there was something improper in the circumstances surrounding the timing and nature of Marci Goldhar’s contact with the Durham Children’s Aid Society. What is clear is that both Mr. Packer and Ms. Goldhar were concerned enough about the children’s well-being and behaviour, their lack of relationship with their father and Amy’s negative role in this dynamic that they both felt it necessary to call the Society. It is also clear that they hoped the Society might take a greater role and were disappointed when this did not transpire.

[76] Marci Goldhar issued an Interim Assessment report on January 8, 2021 in which she summarized her initial findings. She found that while Jesse had made mistakes in terms of the pace of introducing Christine to the children, Amy’s responses were out proportion and represent “the greatest challenge moving forward”. Ms. Goldhar expressed serious concerns “about the children having normalized contact with Mr. Wilson if left in Ms. Sinclair’s care”.

[77] Following the release of this report, Amy obtained an order and conducted questioning of Ms. Goldhar. Amy then asked Marci Goldhar to resign on the basis that she had lied under oath and was biased; she suggested that Ms. Goldhar seek legal counsel. Ms. Goldhar declined to resign, and Amy did not bring a motion to terminate her role as assessor.

[78] Ms. Goldhar released her Final Assessment report on August 6, 2021 in which she provided updated information and confirmed her interim findings. She recommended that the children be placed in Jesse’s care and that he and the children participate in a program such as Family Bridges or Turning Points for Families.

[79] At the trial, Amy contested Ms. Goldhar being qualified as an expert witness on the basis that she demonstrated a lack of knowledge with respect to key issues, that she was unable or unwilling to discharge her duty to provide independent and impartial evidence to the court as well as a number of other grounds. I provided oral reasons at the conclusion of the voir dire and found that Ms. Goldhar was properly qualified to give expert evidence with respect to needs of the children and the ability and willingness of the parties to satisfy those needs, including opinion evidence as to why she is recommending certain therapeutic programs and not others.

[80] In Parliament v. Conley, 2021 ONCA 261, at para. 45, the Court of Appeal held that “the trial judge’s role as gatekeeper is not exhausted” following the initial qualification of the expert. Rather,

The continuing gatekeeping role means that trial judges must not only continue to ensure that the expert's actual testimony does not overstep the appropriate scope of the expert evidence; they must also include ensuring that the expert's testimony continues to be independent in the sense that the expert does not become an advocate for the party by whom they are called: para. 47

[81] During the trial, Ms. Goldhar gave her evidence in a careful and candid fashion within the bounds of her established expertise. She was obviously very upset at having her professionalism impugned by Amy; however, I did not find that she displayed “open hostility” toward Mr. Schuman. Ms. Goldhar’s findings and recommendations were more supportive of Jesse’s position but I do not find that she was Jesse’s advocate or that she was biased.

[82] I did find that, not unlike Mr. Packer, Ms. Goldhar approached her work through a narrowed lens. This is somewhat understandable as from the endorsements of the court and the intake forms of both parties, as the “presenting issue” was Jesse’s fractured relationship with the children. Because of this focus some things that one normally finds in s. 30 assessments were missing. For example, Ms. Goldhar did not speak to the children’s teachers; she accepted that both parties agreed that the children did well in school and did not present behavioural issues there. In my view, what the teachers said about each of the children beyond their report cards could have been relevant. Ms. Goldhar did not speak to the children’s doctors. She advised that this was because neither of the parents suggested that the doctor would be a useful collateral. Again, the doctors might have had relevant information about the children’s mental health in particular.

[83] Amy was critical of what she felt was Ms. Goldhar’s failure to adequately consider domestic violence in her analysis. I do not so find, and I will deal with this issue in more detail below.

[84] Overall, I find that Ms. Goldhar discharged her duty to provide the court with expert evidence within the scope of her mandate in a generally impartial and unbiassed manner.

(d) CAS Involvement

[85] The Durham Children’s Aid Society (“the Society”) first became involved with Wilson-Sinclair family in June 2019 when the children’s paternal grandmother called to report her concerns that Amy was alienating her grandchildren from her and from her son, Jesse. The file was closed at the intake level.

[86] Amy stated that Marci Goldhar encouraged her to contact the Society. I had the impression that Ms. Goldhar’s message was that if Amy genuinely believed that Jesse was abusive, she should report. Amy also stated that she felt she was being set up as she had read on certain websites that alienating parents are known to make false calls to child protective services. Despite her reservations, Amy made two calls to the Society.

[87] In Amy’s initial call on June 17, 2020, her first identified concern was that Jesse had moved in with Christine too quickly. She confirmed that the children had not reported anything specific in terms of visits with Jesse. Amy called again on October 28, 2020 to report that Bayly had been bruised by Jesse prior to the separation and that Jesse had stomped on Ryker’s foot. The Society did not open an investigation.

[88] The Durham Children’s Aid Society opened a file after Marci Goldhar contacted them. The presenting concerns according to the letter written by Society worker Angela Smith dated December 15, 2020 were:

1. Risk of emotional harm as a result of the children’s exposure to ongoing post separation and caregivers’ conflict.

2. Risk of physical harm as a result of a disclosure from Bayly that her father left fingerprints on her arm after he dragged [her] up the stairs. Ryker disclosed his father stomped on his foot. Jesse denied the allegations.

[89] The Society closed its file shortly thereafter. In her closing letter, Angela Smith stated that Marci Goldhar was the expert in alienation and co-parenting and that the family ought to follow her recommendations. She did recommend counselling for the children. Angela Smith also suggested that Amy “needs to learn to better support and encourage the children’s access with their father. [She] could take counselling to enable her to better co-parent and encourage the children to have a relationship with their father”. Ms. Smith recommended that Jesse continue with counselling to learn more effective communication with the children.

(e) Clinical Intake - Haroon & Koval

[90] Suffice it to say that Amy did not agree with Marci Goldhar’s recommendations.

[91] In April 2021, the parties agreed to try a further therapeutic intervention with Shazeeda Haroon and Greg Koval of RESTORE Counselling and Family Services.

[92] Ms. Haroon has a degree in psychology and a Master of Social Work. She is a Registered Social Worker. She used to work for Catholic Children’s Aid Society and for the Peel District School Board. She has also worked for the past eight years for the Office of the Children’s Lawyer conducting s. 112 investigations. She has been in private practice for roughly five years.

[93] Greg Koval is also a Registered Social Worker who has been in practice for 50 years. He has been a part-time faculty member for the Faculty of Social Work at University of Toronto and York University. He has conducted custody assessments and provided reunification therapy for over thirty years.

[94] Ms. Haroon and Mr. Koval agreed to conduct a clinical intake to determine if the Wilson-Sinclair family was a good fit for further reunification therapy.

[95] I only heard from Ms. Haroon at the trial as Mr. Koval was unavailable for health reasons. The report dated October 4, 2021 was signed by Ms. Haroon for both of them.

[96] I was impressed by the approach taken by both of these professionals. Their intake process spanned several months. They had a number of meetings with Amy and Jesse and they also met with the children. In addition, they interviewed Marci Goldhar and Jeff Packer. Their report was balanced and concise.

[97] Ultimately, Ms. Haroon and Mr. Koval determined that this family was not a good fit for their therapeutic program. They were concerned that Amy remained intransigent in her position that she had done everything she could and that Jesse was the one who needed to change. They also noted that Jesse was skeptical of any program other than one that entailed a protective separation.

[98] Ms. Haroon gave her evidence at the trial in a measured and straight forward way. I found her evidence as contained in her report and given at trial particularly useful and I have referenced it in the analysis set out below.

IV. Circumstances of the Children & the Parties’ Ability to Meet their Needs

[99] Much of this case was focussed on parental alienation, how to identify it, what the competing academic research says about it, what it looks like – should you use the Four Factor model, the Five Factor model or a multi-factorial approach and what remedies are best.

[100] I concur with Harper J. who stated in A.F. v. J.W., 2011 ONSC 1868:

[157] Another feature of these extreme high conflict cases is that they often polarize far too many of the adults and professionals in their search for solutions, causing self-serving results and too narrow analysis.

[158] High conflict cases are multi-faceted and complex. They should not be treated otherwise by professionals who are engaged to assist the parties and the court in attempting to define the needs of the children and the solution that best meets those needs.

[159] Each case must be determined on their own facts. These cases of high conflict do not lend themselves to simple solutions. Even if the court determines that alienation is either the complete or partial cause of the rejection by the children of one of the parents, the court is still left with a complicated balance of considerations that keep the best interests of the children as the sole focus in any order that is made.

[101] Rather than wading into the alienation debate, I prefer to focus my analysis of the needs of the children with reference to all of the factors referred to under the operative statute being the CLRA. I have organized my decision accordingly.

1. Best Interests Test

[102] Section 24 of the CLRA provides as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

[103] The statute then outlines a series of factors for the court to consider in relation to the “best interests” test. I have organized my factual findings with reference to these different factors as they may apply.

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

[104] In certain domains the children are doing well and have low needs.

[105] Bayly is in Grade 9. She is an excellent student who works independently. Ryker is in Grade 6. He is a very good student.

[106] The children’s report cards do not disclose any behavioural issues at school; however, I note that they were engaged in online learning for much of 2020 and part of 2021 due to the pandemic so there was less opportunity for teachers to observe behaviour. Neither of the parties raised a concern about the children in terms of their education or their behaviour at school.

[107] The children do not have any significant physical health issues.

[108] Bayly loves horseback riding and has been engaged in this for some time subject to pandemic restrictions. She is also creative and enjoys knitting and crocheting.

[109] Prior to pandemic restrictions, Ryker was involved in competitive hockey and he also played lacrosse. He also enjoys playing Fortnite where he often socializes with friends.

[110] In terms of their relationship with Jesse, the children are exhibiting significant and concerning behavioural issues. They use abusive and hurtful language with him, and Ryker has been physical with Jesse. Although some of these more extreme behaviours have abated, the children continue to be steadfast in their rejection of Jesse.

[111] There were reports that Ryker and Bayly were being physical with each other. In one such instance, Ryker was pulling Bayly’s hair, punching her, and holding her by her neck. When Jesse tried to intervene, Ryker threated “move back or you’re next”. This was one of the incidents that prompted Marci Goldhar to call the Durham Children’s Aid Society.

[112] Amy too has reported that Ryker was physical with her. In his note of July 6, 2020, Jeff Packer stated that Ryker had been hitting Amy and calling her names the night before he was to see his father after a long hiatus.

[113] Amy reported that, on occasion Ryker had urinated in his pants and in bed. Ryker also deliberately urinated on Teresa Wilson’s flower bed. Marci Goldhar and Jeff Packer both noted that Ryker was experiencing these regressive behaviours.

[114] It is clear that while the children may present as emotionally health in certain spheres, they are struggling emotionally in a serious and disturbing way in others.

(b) History of Care for the Children

[115] The current fracture in the relationship between Jesse and the children should be contrasted with the very different pre-separation history.

[116] The evidence suggests that both parties were very involved in parenting the children prior to separation. They were both very committed to the children’s extra-curricular activities. Jesse coached Ryker’s lacrosse team. Although Amy might have taken the children to more health appointments, Jesse was also involved.

[117] Amy’s Intake Form submitted to Marci Goldhar has a good description from Amy’s perspective as to how she and Jesse co-parented:

From roughly July 2016 to March 2019 we co-parented under the same roof very well. To the outside people did not know that anything was different [sic]. We collaborated and communicated to meet all of the needs of the children. I held down a full-time and part-time job and Jesse held down a full-time job and a home business. For the most part we were barely home at the same time. If we were kept our distance [sic], however for example if one of us made dinner or picked up dinner we always included the other. We attended each other families [sic] events and acted "normal" at the children's extra curriculars. It is very unfortunate that we were able to function like that under the same roof, but almost immediate [sic] to Jesse moving out this ability to collaborate was lost. At this current time what we do best is living separate lives. I have known Jesse since 2003 and despite the history that we had he always wanted to make child focussed choices and this is no longer the case.

[118] Amy told Marci Goldhar with reference to the period that they lived separate and apart in the home: “we were amazing those three years – nobody knew we were not together”.

[119] It was not disputed that Amy and Jesse had agreed to a shared parenting plan through the collaborative process and started to implement that plan after Jesse moved out of the house.

[120] There were some signs of estrangement between Jesse and Bayly that pre-dated the physical separation. Jesse and Bayly got into two arguments that became physical. For Father’s Day in 2018, Bayly made a card for her maternal uncle but not for Jesse. Jesse believes that this estrangement started when he rejected Amy’s proposal to reconcile in 2018.

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

[121] Things started to quickly deteriorate after Jesse moved out of the home and then introduced Christine and her children to Bayly and Ryker.

[122] From Amy’s description of the previous three years, it is likely that the children had no idea that their parents had separated. The parties only shared this information with the children one month before Jesse moved out. In her interview with Ms. Goldhar, Bayly was very upset and began to cry when talking about how hurt she was that her father did not spend time alone with them after he moved out. Ryker was distressed as his friends were asking who was the woman sitting with Jesse at his extra-curricular activities. Marci Goldhar felt that it was “truly unfortunate that these children were not afforded more time to adjust to the separation before exposure to a new family dynamic and as a result this has had significant consequences”.

[123] Jesse seemed to have difficulty acknowledging that he could have made different choices to give the children time to accept the separation and the fact of his new relationship. However, I concur with Ms. Goldhar who noted, the children’s reaction, particularly with the passage of time has been way out of proportion.

[124] Now the children’s connections are divided into two camps: Amy’s side which includes Amy’s parents; and Jesse’s side which includes Christine, her children Jesse’s parents, his brother and his wife, and the children’s cousins. The children have strong relationship with Amy and those on her side. They have little or no relationship with anyone on Jesse’s side.

[125] The children have been verbally aggressive with Jesse although this appear to be diminishing in favour of no communication at all. The following are a just a sampling of some of the numerous hurtful and disrespectful comments made by the children:

• Bayly referred to Jesse as a “fat bald fuck”
• Bayly referred to her father and Christine as “psychopaths”
• Ryker told Jesse to lie in the middle of the road or to go to China to get COVID-19 and threatened that he would “take a knife and throw it at” his father
• Bayly told Jesse to “get his priorities straight” (mirroring language used by Amy) and called Jesse a loser for “living in his mommie’s basement”
• Bayly told Christine that she “better put a leash on those creatures when they come home”, referring to Christine’s two children
• Bayly called Teresa Wilson “disgusting” and would say “you people are disgusting” referring to Jesse’s family
• The children told Christine early on that Jesse “has no education and you will see when you get to know him…”

[126] There were a number of examples of Ryker being physically aggressive with Jesse:

• He threw a stick at Jesse’s face and was kicking him
• He ripped up clumps of sod from his paternal grandmother’s lawn and threw them at Jesse.
• He ripped off part of his grandmother’s bush and tried to hit Jesse with the branch.
• He swung an umbrella at Jesse like it was baseball bat
• He tried to stab at Jesse’s eye with a stick
• He kicked Jesse on the shin

[127] In the course of reviewing a series of photos that he had filed in evidence, Jesse pointed to pictures of the children interacting with their various pets. Jesse said that both children loved animals of all types. I found it disturbing therefore when Jesse described that Bayly put one of his bearded dragons (a larger reptile) on the trampoline and was jumping so it bounced up and down.

[128] Despite these numerous examples of disrespectful and aggressive behaviour toward Jesse, there are no significant or credible examples of him acting other than with patience and control while the children have been in his care. The parenting professionals involved with the family and the Durham Children’s Aid Society workers all made similar comments. One can be sure given the degree of recording and reporting by all involved that if there were examples of Jesse acting inappropriately, the court would have heard about it.

[129] Jesse’s mother Teresa Wilson gave evidence at the trial. She was understandably supportive of her son and upset by the children’s rejection not only of their father but of his entire side of the family. However, I found her to be for the most part even-handed and generally credible.

[130] Teresa Wilson had a good relationship with the children prior to the separation. She babysat the children from time to time and the family got together over the holidays. After the separation, Teresa Wilson noted that the children’s behaviour toward her became increasingly negative. The children have had no relationship with their grandmother for some time.

[131] Teresa Wilson had been in an accident and had an operation on her leg. She did not want Ryker to know that she was hurt as he was “becoming more unpredictable and [she] did not want him to know that [she] was vulnerable”.

[132] In a longstanding theme, the children accused Teresa Wilson of trapping them in her garden by placing a shovel against her garden gate. Teresa Wilson explained that she kept a shovel propped against the gate but that as the gate swung inwards toward the garden, it would not have been obstructed by the shovel.

[133] The children no longer see Jesse’s brother, their Uncle Josh, and his wife, Aunt Laura, who live nearby in Whitby. The last time the children saw their aunt and uncle they refused to acknowledge them. No reason was given for this estrangement. When Jesse suggested that he invite the children’s cousins over during his parenting time, Bayly’s response was “we will have to talk about that”; she then went over to the curb and called Amy to see if it was OK.

[134] The children’s relationship with Christine Upton also deteriorated quickly after the initial positive interactions.

[135] I found Christine to be forthright and sensitive in giving her evidence. She was supportive of Jesse but also objective. She was obviously very saddened and distressed about Jesse’s lack of relationship with his children and, understandably, the impact that this was having on her family.

[136] Christine acknowledged that during the screen door incident, she yelled out that the house should be sold. She indicated that she regretted this participating in that incident and felt that all of the adults could have handled things differently that day.

[137] On one visit with Jesse in the summer of 2019, Bayly and Ryker were physically fighting with each other over their cell phone. Christine threatened to call or made a fake call to the Children’s Aid Society. Christine then called Amy using the children’s phone. Amy was upset that Christine had used the phone. She drove over to Jesse’s home. Amy said that the children were scared and very upset. Amy also noted that the children were also upset because Christine has “called them a family”. Christine’s threat to call the Society has become another persistent theme; an event that has been blown out of proportion.

[138] Christine reported that her children feel positively about Bayly and Ryker but are sad about the whole situation. Although Bayly and Ryker made derogatory comments to the adults about Christine’s children, the evidence did not suggest that the children did not get along.

[139] The children’s relationship with Christine is largely non-existent. Even at the end of the trial, the children would not enter Jesse’s home if Christine opened the door. On one of his visits during the trial, Jesse was getting ready to drive the children home and then he and Christine were going to get their COVID vaccines. When the children realized Christine was going to get into the car, they immediately called Amy who answered their call. She did not call Jesse to find out if there was an emergency although she did tell the children that she would not come and pick them up and could not be on the phone with them. Amy told them to “speak with Jesse and work things out”. Ultimately Jesse drove the children home without Christine.

[140] The children’s relationship with Amy is the polar opposite of their relationship with their father. The children are completely aligned with her.

[141] Amy’s parents, Bob and Wendy Sinclair are also aligned with her and the children. Amy stated that the children spend lots of time with their maternal grandparents. Shortly after separation, they babysat the children. According to Amy her parents are very involved with the children’s extra-curricular activities; her father was “on the ice with Ryker every single day”. They get together on holidays and the children spend time at their maternal grandparents’ cottage.

[142] Amy did not call either of her parents to give evidence at this trial. Jesse asks the court to draw an adverse inference from her failure to do so.

[143] Amy has a good relationship with her parents, and they are supportive of her both financially (they had loaned her over $250,000 by the commencement of the trial) and emotionally. She did not provide any explanation for her failure to call either of her parents as witnesses although they could be reasonably expected to testify in favour of her case. Evidence relating to the influence of maternal grandparents in the children’s rejection of their father and whether or not they supported Amy in repairing that relationship was material. I draw an adverse inference from Amy’s failure to call her parents as witnesses: R. c. Jolivet, 2000 SCC 29, [2000] 1 SCR 751, Parris v. Laidley, 2012 ONCA 755, The Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018, Div. Ct., at para. 92, citing Parris, Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (Ont. S.C.J) at para. 47 and PCP v LCP, 2013 ONSC 2564.

[144] Jesse and Christine both reported that when they saw Bob and Wendy Sinclair at one of the children’s extra-curricular activities, the Sinclairs refused to speak to them. Wendy Sinclair went as far as to turn and shield her face from Christine when she tried to say hello.

[145] Bob Sinclair took to parking around the corner from Jesse and Christine’s new home during Jesse’s parenting time with the children. Christine came across Bob Sinclair while riding her bike and stated that Bob Sinclair “had words for her” and said that Jesse was a “child abuser”. Concerned neighbours came out to check on things.

[146] Amy testified that she told her father to back off but said he was not happy about it as “he had the children’s best interests and safety at heart”.

[147] Bob Sinclair was interviewed by Marci Goldhar. He was not happy with her report and called Ms. Goldhar back to report the “falsehoods” contained therein.

[148] From the evidence that I received from other witnesses, it appears that Bob Sinclair and Wendy Sinclair have likely fostered and supported the children’s rejection of Jesse. They have adopted the narrative put forward by Amy of Jesse as an abusive parent.

[149] The children appear to have a relatively good relationship with each other. Bayly is the more dominant child and she directs Ryker. For example, during Jesse’s parenting time, when Ryker expressed an interest in swimming or an activity suggested by Jesse, Bayly would admonish him saying “bad boy”. On one occasion Ryker expressed an interest in going into the pool with his cousin; Bayly shook her head “no” and Ryker obeyed. Bayly also praises Ryker when he is being rude and defiant. Bayly’s influence on Ryker was noted by all of the social work professionals assisting the family.

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

[150] This particular factor under the best interests test merits in-depth discussion.

[151] There was no suggestion that Jesse was unwilling to support Amy’s relationship with the children. Jesse’s focus was on repairing his own relationship with them.

[152] The same is not true for Amy. Despite her statements to the contrary, Amy does not authentically support a relationship between Jesse and the children. Amy said that she believes that the children need to have a better relationship with Jesse but also that the children’s rejection of their father was justified by a number of factors, including that Jesse is aggressive, untruthful, and untrustworthy. The children in turn have adopted Amy’s narrative and translated this into an active and persistent rejection of their father.

[153] Amy denied being upset by Jesse’s relationship with Christine, but the evidence suggested that she struggled with this. Amy described that she and Jesse “were amazing” in the three years they lived together following their separation and, at least according to Amy, hid the fact of their separation from the world. It must have been hurtful and embarrassing particularly, for someone as intensely private as Amy, when Jesse moved in with Christine so quickly after moving out of their home. In her first call to the Durham Children’s Aid Society, Amy’s first identified concern was that Jesse had moved in with someone he barely knew.

[154] In her Intake Form for Marci Goldhar, Amy was fairly balanced and positive in her description of Jesse as a parent prior to separation. She now struggles to find anything positive to say about Jesse. Amy was asked in cross-examination if she had any positive conversations with the children about their father. Amy struggled with the question and asked for clarification from Mr. Ludmer. She then responded: “we still have things in our house that belong to his grandmother, I referenced great granny’s shortbread recipes. I try to keep his family to the forefront; if [the children] raise issues about their cousins, I will be supportive”. Amy again referred to using Jesse’s grandmother’s shortbread recipe before saying that the children have shared that they have had positive conversations with Jesse on walks back to her place.

[155] It is difficult to believe that the children receive positive messages from their mother about Jesse when Amy struggles to recount any such examples during the trial when she should be putting her best foot forward with assistance from her lawyers.

[156] There were many examples of Amy not just being unwilling to support Jesse’s relationship with the children but actively undermining it.

(i) Amy’s suggests that the children are unsafe in Jesse’s care and he cannot be trusted

[157] Amy overtly and subtly reinforced for the children that their father was unsafe or that he did not care for them in various ways. The following are just a few examples:

a. Amy failed to re-frame the screen door incident for the children when they continued to raise it with her. Instead of putting the event into context for the children, her message is akin to “it’s OK, we are safe now”.

b. Amy endorsed the children’s narrative that their grandmother had barricaded them in her back garden with a shovel, which was not factually supported. The children continue to refer to this.

c. Amy sent the children to Jesse’s home for many months with water bottles and food some of which she had cooked and some of which she had purchased for the children. This despite the fact that Jesse had made it clear to the children that they had free access to his fridge and after he offered to prepare or purchase their favourite foods for them. Jesse asked Amy to stop this practice and the children continued to refuse to eat his food. Amy who was very emotional when giving her evidence on this point, accused Jesse of “refusing to feed the children”. She maintained this position to the conclusion of the trial.

d. In a similar narrative approach, Amy stated that Jesse had not given the children Christmas gifts in 2021. Amy knew that the children’s presents were sitting under the Christmas tree in the living room; Jesse had invited them several times to come and open them, but they refused to leave the music room. When the tree came down, he moved the children’s gifts to their bedrooms and continues to remind them that their presents are there waiting to be opened.

e. Amy sent games and activities for the children to do at Jesse’s home despite the fact that he consistently provided a wealth of activities tailored to each child’s interests. The children had complained that Christine’s children had “touched their stuff” that Jesse had provided for them.

e. Amy has suggested that Jesse’s homes are unsafe. She required a series of inspections to be done on the basement apartment in Teresa Wilson’s home. When Jesse move to his new home, he invited Amy to tour it. Amy suggested that there was mold in Ryker’s room and Ryker still refers to this as a reason not to enter his bedroom.

f. When the COVID-19 pandemic started, Amy relied upon this to terminate Jesse’s recently resumed parenting time with the children. Following the June 4, 2020 case conference, when the children started back up with parenting time, they wore their masks at their father’s home. Close to the conclusion of the trial, the children were still wearing their masks to walk to their father’s door. They would remove their masks after some time in his home but then put them on again for the drive back to Amy’s house in Jesse’s car. Amy acknowledged that rather than being due to COVID concerns, this had become a habit; she did not appear to acknowledge the symbolic nature of the gesture. She said that she would “start” by asking them not to wear them to walk to the door of Jesse’s home. To her credit, I was advised on the last day of trial, that the children had stopped wearing their masks.

g. In the early months of Jesse’s parenting time with the children, Amy and the children were in regular contact by phone and/or text. Such incidents continued even following a specific court order regulating such communication.

h. Amy would refuse to drop the children off at Jesse’s in this earlier period if she saw Christine’s truck in the driveway or a car she did not know in the driveway. When the children started leaving Jesse’s home unilaterally, Amy would be waiting for them at a pre-arranged pick-up location. Rather than returning them to Jesse’s home and requiring them to stay, she would take them to her home. On several occasions, Amy took Bayly to her riding lesson (Jesse had offered to take Bayly, but she refused at that time to get into his car) which can only have encouraged Bayly to continue this practice.

i. On several occasions when the children stayed outside in the summer rather than entering Jesse’s home, Amy would pick up the children to have a cold shower. This despite the fact that Jesse had a pool at both of his homes not to mention showers. She did not return the children to Jesse’s home.

j. Amy often proposed various activities for Jesse to with the children and suggested that she could attend with him to make the children feel more comfortable. While on the one hand, this appears supportive and encouraging, there was no suggestion that Jesse was at a loss to find interesting and exciting activities for the children.

[158] In all of the foregoing examples, the children could only be left with the impression that their mother believed that they were not well cared for by Jesse and that they were supported by her in refusing to enter his home, use his bathroom, consume his food and drink, drive in the car with him and participate in activities initiated by him.

[159] Amy stated that she did not trust Jesse. The children have adopted this further narrative without being able to articulate why. Amy said that the reason that the children refuse to permit Jesse to drive them anywhere was because they don’t trust their father to bring them back or to go where he says he is going to even though she could not point to any examples of Jesse having done this. Amy said that the children don’t trust him to take them to activities because “they don’t trust who is coming with him”. When asked if Amy thought these concerns were “reality based” she said: “they don’t trust Jesse because of the big picture”. When asked by Mr. Ludmer if she could tell the children they were wrong she said that she had never used the word wrong; rather, she said “I tell them “it’s OK”.

(ii) Amy Declines to Exercise Parental Authority to Support Jesse

[160] More than once during the trial, I asked myself: why can Amy not simply direct the children to behave appropriately? It became clear that in many instances, Amy was just not prepared to do that.

[161] Amy stressed that the children had “fantastic manners”. She was emphatic that she would not tolerate the children bad-mouthing their father and that there would be serious consequences if they did this. This was not borne out by the evidence. There were numerous examples, some already set out above, of the children using incredibly rude, denigrating and hateful language toward their father. Amy did not dispute that the children’s behaviour toward their father could be abhorrent. She did not agree with all of Jesse’s descriptions of what occurred when she was not there and preferred what the children told her. I accept Jesse’s evidence in terms of his description of what occurred in his home during parenting time with the children.

[162] Amy gave few, if any details as to what “serious consequences” she initiated to address this. Even when she witnessed Bayly tell Christine to “get a leash for her creatures” referring to her children, there is no evidence of Amy correcting Bayly’s rude behaviour.

[163] In one of the sessions with Jeff Packer, Amy brought the children with her when it was supposed to be an adult session. The children made numerous attempts to disrupt the meeting and were crying, requesting to the washroom etc. Bayly became very upset and was crying and shaking over a comment made by Mr. Packer. Mr. Packer described how Amy remained passive and unengaged and it was only when he asked her to intervene to help Bayly calm down that she did so. This example mirrors others, including the report card incident that occurred prior to separation wherein Amy appears to condone he children’s negative behaviour in relation to Jesse and those in his sphere.

[164] Jeff Packer felt that it was very difficult for Amy to hold the children accountable for their denigrating and disdainful treatment of their father as the children were picking up on her lack of authenticity. He also noted that Amy’s preferred style of parenting was to ignore negative behaviour and reward positive behaviour but, that in this context, Amy was reinforcing the children’s negative behaviour through inaction. I would concur with this assessment.

(iii) Amy Fails to Follow Court Orders

[165] Jesse sought orders to address many of these concerns relating to his parenting time or lack thereof.

[166] On January 9, 2020, parties attended at a case conference. Scott J. endorsed that the conference was held regarding “very complex disintegration of previous cooperative parenting plan post separation, complete interruption of parenting time between father and 12 and almost 10 year old since July 2019”. The parties consented to the order for reunification therapy and an assessment. Permission was given for a motion for parenting time if necessary.

[167] After this court date, Jesse suggested to Amy that he take Ryker to a hockey tournament. Amy’s response was that she had to discuss “how court went” with the children.

[168] Following this conference, there was little progress in terms of Jesse resuming parenting time with the children. Initially Amy raised concerns about Jesse’s basement apartment although the children had been spending overnight time the summer prior. When the pandemic hit, Amy would not permit the children to enter Jesse’s home or to drive with Jesse in the car. She suggested that he have parenting time outdoors either in her backyard or in a park where she would wait.

[169] Jesse sought and obtained a date for an urgent follow up conference with Scott J. held on June 4, 2020. Scott J. made a detailed order on consent that included the following terms:

(4) The Applicant father shall have access to the children three times weekly, for periods of at least four hours, four hours and six hours respectively. These visits may be held in the applicant’s current residence, including the washrooms and the children’s bedrooms, his motor vehicle, the children’s current residence or a public place, always in compliance with all government health regulations.

(5) The visits shall be primarily between the father and children and no party or anyone acting on their behalf, shall discuss with the children, or in their hearing, the issues raised in this proceeding or denigrate or criticize another caregiver. The father is permitted to attend the children’s extracurricular activities and to deliver them to and from school when it recommences.

(6) Both parents shall encourage the children to maintain the schedule of visits and to enjoy themselves during the access. The children shall be permitted to have a cell phone with them during the visits but retain it in their bag and use it for emergencies only. The respondent mother shall not telephone, text or email the children during their visits with their father.

(7) The parents, and only the parents, shall communicate exclusively through Our Family Wizard. Each party shall review the OFW communications each morning and respond to any inquiry from the other parent within 24 hours. Neither parent shall communicate with the other parent “at work” unless it is an emergency.

[170] Amy failed to follow the spirit and in some instances the letter of those orders that she did not agree with.

[171] Following this order, the children still refused to enter Jesse’s home for any purpose, to eat his food or to enter his vehicle. They entered Jesse’s home for the first time on December 24, 2020 – six months later.

[172] Between June 2020 and May 2021, the children would unilaterally leave Jesse’s home during his parenting time and Amy would either pick them up or receive them when they walked to her home; she did not return them to Jesse’s care.

[173] Amy was required to produce her phone records and the phone records of the children. The topic of these records, whether they had all been produced and the redactions of the documents was a daily discussion during the trial. Amy acknowledged that she did not always comply with the order not to communicate with the children. The records show that for many months after the court order, Amy continued to communicate with the children during Jesse’s parenting time. The vast majority of the calls were initiated by the children. For example, on June 20, 2020, Amy received approximately 35 one-minute calls from Bayly’s phone in the span of one hour. On Tuesday, October 24, 2020 there were 32 such calls. The number of calls made on each visit did diminish over time but there was regular communication between Amy and the children in relation to the children requesting that Amy pick them early from parenting time. There was no evidence of anything that would qualify as an “emergency” pursuant to paragraph 6 of Scott J.’s order during this period of time.

[174] Amy acknowledged that she had not been diligent in checking OFW; in one month she logged on only three times. She stated that she did check when “something was going on” but that she felt that OFW caused a lot of conflict. Although this is a relatively minor breach in the grand scheme, it is another example of Amy deciding what orders she deems appropriate to follow.

[175] On May 26, 2021, I made on order on consent that Shazeeda Haroon and Greg Koval would conduct a clinical assessment to determine if the family was suitable for further reunification therapy. The order contained the following additional terms also made on consent:

5. The Applicant and the Respondent shall exercise all required guidance, boundaries, incentives and consequences in their parenting of the children of the relationship, namely, Bayly Dawn Wilson born June 20, 2007 (hereinafter “Bayly”) and Ryker Russel Wilson born March 10, 2020 (hereinafter “Ryker”)(collectively the “children”) to ensure compliance with the terms of all Court Orders concerning parenting time and therapy contact and the Applicant and the Respondent shall never accept any assertion by the children that they do not, or will not, imply with the terms of such Court Orders.

6. The Applicant and the Respondent shall communicate to and foster in the children a concept of the other parent as (I) safe; (II) loving; (III) available, (IV) that each parent can make a substantial contribution to the upbringing of the children; (V) that each parent is supportive of the children’s relationship with the Applicant and the Respondent.

[176] In her closing submissions Amy stated: “Jesse has had a pattern of aggression and violence when he is upset, and the children know this”. Furthermore, Jesse took a “harsh parenting approach with the children” and imposed consequences such as withholding food, ceasing beloved extra-curricular activities, showing preferences for Christine’s children, and withholding birthday presents and cake. It is difficult to reconcile how Amy could authentically comply with the spirit and substance of this order when she continues to hold and put forward such a negative view of Jesse. It should come as no surprise, therefore, that there was little meaningful change in the children’s relationship with Jesse following this order.

[177] Amy’s penchant for following her own counsel was also reflected in her failure to follow agreements and contracts that she entered into with professionals.

[178] As I outlined in my mid-trial ruling released January 10, 2022 (Wilson v. Sinclair, 2022 ONSC 820), Amy surreptitiously recorded all of the therapeutic professionals in this case contrary to either their written contracts or their express verbal requests. When Marci Goldhar asked Amy if she was recording her, Amy apologized but said “she needed proof”.

[179] Marci Goldhar’s retainer contract provided that both parties would attend for psychological testing if required. Toward the end of her engagement, Marci Goldhar advised that she required both parties to attend before Dr. Fitzgerald for such testing. Jesse paid his retainer funds to Dr. Fitzgerald, but Amy did not, and the testing did not take place.

[180] I find that despite her assurances to the contrary, Amy is simply unwilling to support Jesse’s relationship with the children.

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

[181] The evidence of the children’s views and preferences came from a variety of sources, including the parties, the therapeutic professionals retained by the parties and the Durham Children’s Aid Society worker who interviewed the children.

[182] There was no real dispute that the children’s stated preference is not to attend for parenting time with their father. It was less clear what their thoughts were in terms of having a relationship with him at all.

[183] The children met with Jeff Packer on more than one occasion. They did not gel particularly well with him and blamed him for some of the changes to their routine. Bayly told Jeff Packer in a meeting on September 3, 2020, that “if [her father] wanted us to be there you would think he would treat us better”. Bayly was upset that the parenting time schedule was impacting her ability to horseback ride. Jeff Packer noted as did others that Bayly tended to control the narrative for both children. Both children reported various concerns about their father in detail but glossed over information about their mother. Jeff Packer felt that many of the children’s complaints about their father were adopted narratives that related to anxiety relayed to the children by their mother over the past two years. There is support for this conclusion based on other evidence received.

[184] Marci Goldhar interviewed both of the children but not at length. She had difficulty arranging to interview Ryker as he refused to participate.

[185] Bayly told Marci Goldhar that she feels that her father loves Christine’s children more than them. Ms. Goldhar was of the view that Bayly and Amy are aligned, and that Amy does not challenge these views held by Bayly because of Amy’s own feelings of hurt and rejection. Again, other evidence received supports this conclusion.

[186] Ryker had difficulty articulating what he did not like about his father to Marci Goldhar. He said that he likes hitting his dad with a stick and throwing rocks at him and that lately his father has become mean.

[187] Overall, Marci Goldhar felt that the children are entrenched in their views and that they feel vindicated and verified by Amy in holding those views.

[188] Shazeeda Haroon and Greg Koval also met with Bayly and Ryker. Shazeeda Haroon stated that Bayly answered for Ryker when asked questions and Ryker acquiesced in that.

[189] The children reported to Ms. Haroon that some visits were better than others. They wanted dad’s “full attention” and to be “his priority” and then they could be more relaxed. They did not want any interference from Christine Upton. They felt that he was not giving them his full attention if he was speaking to Christine and her children during parenting time. According to Shazeeda Haroon, Bayly rated her relationship with her father as 4.5-5/10. Bayly believed that Jesse would deny any of her concerns and would not apologise for his behaviour – even if he did apologise, she would not believe it.

[190] In her report, Durham Children’s Aid Society worker Angela Smith stated: “The children appear comfortable with their mother and they have clearly stated that they do not want access with their father.”

[191] Although Bayly and Ryker are both intelligent and articulate children, I am unable to put much weight on their stated views and preferences in the overall analysis. The children have been reasonably consistent in not wanting to attend for parenting time with their father. However, they have struggled to clearly articulate why such an extreme position is warranted. Furthermore, and importantly, I cannot find their views are independently held. Their concerns and the language they have adopted to express those concerns mirror many of Amy’s own. I have an additional concern regarding the independence of Ryker’s views and preferences as he appears to be dominated by Bayly. I find that both children have been influenced by their mother’s narrative and beliefs and likely also negatively influenced by their maternal grandparents.

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

[192] This was not a significant factor for this family.

(g) Any plans for the child’s care;

[193] Each party’s plan for the children’s care will be discussed at length in the remedies section below.

(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;

[194] Amy is well able to meet the children’s basic needs. In many respects she is an exemplary parent. She prepares healthy meals for the children. She supports them in their education, and they are both excellent student. Amy also provides the children with diverse and tailored extra-curricular activities.

[195] I am also confident, particularly based on the historical parenting roles, that Jesse is well able to meet the children’s needs if given the chance. He too provides appropriate meals for the children even if they refuse to eat them. I have no concerns about his ability to support their education. He was historically involved in their various extra-curricular activities including coaching Ryker’s lacrosse team. He has begged for opportunities to take the children to their activities since his relationship with them deteriorated but again, the children have been opposed and this has not been facilitated by Amy. He has provided a detailed description of the numerous and varied activities, crafts and outings that he has made available for the children at his home.

[196] Despite Amy’s positive qualities as a parent, I find that she is unwilling and unable to meet the children’s emotional needs in terms of fostering a positive and healthy relationship with their father. Instead, she has allowed her own negative feelings following the demise of her relationship with Jesse to influence and impair their relationship with their father.

[197] Jesse has made mistakes that have contributed to his fractured relationship with the children. In the early days following the physical separation, he moved too quickly and insensitively to impose his “new family” on the children. This was noted by Marci Goldhar and Shazeeda Haroon. However, significant time has passed, and one would have expected both Amy and the children to have processed this to a greater degree.

[198] A factor in my analysis under this part is each of Amy and Jesse’s willingness to reach out for help to address some of their parenting deficiencies. In this regard they are very different.

[199] Amy has been resistant to actively and authentically engaging with professionals with a view to making meaningful changes in terms of her support for the children’s relationship with Jesse. Amy advised that she had pursued counselling with Ricardo Theodoluz, but it became clear that this was a very belated effort and that Mr. Theodoluz did not have a full picture of why therapy was required.

[200] Amy described herself as feeling alone, isolated and ganged up on by the various professionals. This is somewhat understandable as the four different parenting professionals retained by the family all noted her unwillingness to consider genuine change despite her stated position to the contrary. Amy described herself as part of the puzzle but, when asked on more than one occasion to come up with things she could have done differently in the past or could do differently in the future, struggled to articulate anything meaningful.

[201] Jesse has accessed professional support. He has had regular meetings with two different therapists who have provided him with counselling and parenting advice. Christine has also participated in these sessions with him.

[202] Jesse’s therapist, David Currie, attended to give evidence. Mr. Currie is a Registered Social Worker who has been doing family counselling for 45 years. He was involved for many years in developing the Partner Assault Response Program and has provided counselling programs for abusive men. He has also conducted parenting assessments for the court. I found him to be a very even-handed and thoughtful in giving his evidence.

[203] Mr. Currie impressed me as someone who would also be careful in providing therapeutic support, to reality check with his clients and provide them with practical skills to address issues.

[204] David Currie described Jesse as “one of the most grounded people he has ever worked with”. He went on to state that based on the hundreds of men that he has worked with, many will say one thing but do another – in his opinion, this was not the case with Jesse.

[205] Amy was critical of Jesse for having a rigid parenting style. She provided many examples, including: Jesse would not allow the children to eat their meals in the music room, he would not give them their Christmas presents unless they came over to the Christmas tree, and he would not let them take the mini-Z (snowmobile) to her home. Given the detailed evidence of the children’s relationship with their father spanning the past 2 ½ years, I was not convinced that Jesse simply accommodating them in this way would improve their relationship with him as Amy was suggested. Furthermore, at some point as a parent, even one with little parenting authority such as Jesse, it is necessary to set appropriate limits for children.

[206] Few parents have a playbook to deal with the kind of negative and oppositional behaviour consistently demonstrated by Bayly and Ryker toward Jesse and his side of the family. Overall, I found that Jesse was patient, calm and supportive of the children even when tested to the limits by their behaviour. Importantly, Jesse has demonstrated a willingness to seek help and, generally appears to follow the advice given.

[207] Christine Upton has also demonstrated that she is prepared to support and assist Jesse in repairing his relationship with the children. Her children continue to share a bedroom so that Bayly and Ryker’s two bedrooms can be preserved. For a period of time, she left her home for several hours so that Bayly and Ryker could have one on one time with their father.

[208] I find that Amy is well able to care for the physical needs of the children, but she has fostered a set of circumstances that have impaired their emotional well-being. I do not have concerns about Jesse’s ability to meet the needs of the children if given the space to do so and with continued support from his therapist(s).

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

[209] Jesse generally refrained from criticizing Amy. I had the sense that he had moved on and was happy in his new relationship and all he was really interested in was repairing his relationship with his children.

[210] Jesse summarized by saying that he and Amy have poor communication but are not in overt conflict. This seemed to be accurate. Much of the communication between the parties was respectful although often not productive.

[211] The parties have had considerable difficulty cooperating with each other as each is entrenched in their view as to the source of the children’s estrangement from Jesse.

(j) The impact of any family violence

[212] The CLRA requires the court to consider whether there has been any family violence and, if so, its impact on (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child: s. 24(3)(j).

[213] Family violence is defined in the statute as:

any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property

[214] Under s. 24(4) CLRA, in considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[215] At the trial Amy stressed that she had experienced family violence during her relationship with Jesse. She also stated that even when the children did not witness family violence, they were aware of it. Amy also stated that the children had been victims of family violence perpetrated by Jesse.

(i) Family Violence against Amy

[216] Amy stated that some time in 2013 she and Jesse were engaged in an argument and he stood on her feet, held her arms and head butted her; she spit in his face. Jesse recalled this altercation although he denied Amy’s version of events. He said that Amy spit in his face and punched him in the back as he was leaving to go down into the basement. He acknowledges that he spat back at her.

[217] Amy described a second event when again, she and Jesse were arguing, and she says he punched his fist through a bedroom door necessitating its replacement. Jesse denied this. Amy’s evidence was that Jesse’s friend Jason Bouchard came in to replace it, but at trial, Mr. Bouchard denied that he had ever replaced a door in their home; I prefer Mr. Bouchard’s evidence. Jesse stated that he remembered he and Amy having an argument while doing housework, as he was following her into Ryker’s bedroom, she closed the door on him, and this caused a pressure crack at handle height. Jesse stated that he did replace the bedroom door to the master bedroom with the unfinished one that is still there, but this was because the door would not latch properly after their new house settled.

[218] Amy described a third incident that occurred after separation but when they were still living in the home together wherein Jesse swore at her when she was not able to figure out how to pay for parking at the Oshawa Centre. On a fourth occasion, Jesse broke a glass bowl on their coffee table in anger.

[219] Amy stated that she never told anyone about these incidents as she was embarrassed and scared. She was also worried that if child protective services got involved, they might discover that Jesse had (in her words) an illegal snake business in their basement.

[220] Any allegations of family violence are serious, and I have carefully considered the parties’ evidence. However, I have concerns about Amy’s credibility in both in terms of her recounting of the events and the emphasis she is now placing on these incidents.

[221] In her initial Answer and Claim, which is 14 pages long, there is no mention of any domestic violence that occurred during her relationship with Jesse. The same is true for her first Form 35.1 Affidavit in Support of Custody and Access sworn on August 30, 2019 which specifically asks the deponent to outline any domestic violence.

[222] In Marci Goldhar’s standardized intake form for the parenting assessment, the parties were asked: “what are your significant concerns about your relationship with the other parent?” Amy’s response to this question in her April 30, 2020 intake form was as follows:

• Jesse is constantly making false allegations against me
• He is argumentative towards me and his approach with me is threatening and bully like
• His recollection of what happened vs what he thinks happened are completely different even if I have something recorded

[223] The intake form asked the parties to answer whether there have been incidents of spousal violence and to provide specifics. Amy describes that “[l]iving with Jesse was like walking on egg shells constantly”. She describes how he yelled at her on one occasion because there was took much orange juice in the fridge and had a “meltdown” another time because she did not use the right kind of pasta noodle. There is no mention of the four incidents described above.

[224] Amy did not mention the screen door incident in her intake form either, but I have considered it as part of my analysis of the impact of domestic violence.

[225] In response to the question in Marci Goldhar’s intake form: “are you fearful of the other parent for any reason?”, Amy responded that she was “most fearful of Jesse’s lies and the impact they could have against me”. She did go on to say that “his temper escalates without warning, he has no accountability or remorse for his actions or words and he lacks empathy”.

[226] Amy made numerous suggestions for Jesse to come to her home for his parenting time with the children or for them to attend together at activities for the children. She was critical of Jesse for declining these opportunities. One must be mindful of myths and stereotypes regarding how victims of domestic violence behave. However, the evidence in this case, including Amy’s continuous proposals in this regard suggests that she was not fearful of Jesse or uncomfortable being in his presence.

[227] Amy acknowledged in the same intake form for Ms. Goldhar that the children had not witnessed any physical altercations between their parents. She stated that “they witnessed typical verbal abuse that occurs in verbal arguments between parents. I would say they witnessed emotional abuse but were not cognizant of it due to their age.”

[228] When Amy called the Durham Children’s Aid Society the first time on June 20, 2020, her initial concern was that Jesse had moved in with Christine after only knowing her a few months.

[229] It is understandable that Marci Goldhar did not focus on domestic violence in understanding the family dynamic as Amy did not raise it as a significant factor.

[230] Amy amended her Answer and Claim on October 19, 2021 just prior to trial. In her amended Answer and in her position at trial, she painted a very different picture in terms of domestic violence as a factor in parenting. Amy summarized in her closing submissions: “Jesse has had a pattern of aggression and violence when he is upset, and the children know this”.

[231] I find that Amy’s evidence of family violence arose only later in litigation despite being represented by experienced legal counsel from the outset and despite repeated routine inquiries by various professionals. I find that Amy’s evidence on family violence was inconsistent. While I find that some instances of family violence occurred, I find that these incidents were sporadic, situational, historical, and in the more significant instances perpetrated by both parties.

[232] I do not find that Jesse has engaged in any pattern of coercive or controlling behaviour toward Amy; there are some indicators that in fact the reverse is true.

(ii) Family Violence Against the Children

[233] Amy also referenced the physical altercations between Jesse and the children particularly with Bayly who Amy stated was more prone to butt heads (figuratively) with Jesse due to her personality and willingness to challenge her father. She submitted that these experiences were part of the children’s rejection of Jesse.

[234] In 2018 Jesse and Bayly got into an argument. Bayly would have been about ten years old at the time. Jesse was holding Bayly’s arms from behind while walking her up the stairs. Amy later took a photo of Bayly’s arm which showed finger mark bruises. Jesse did not specifically deny that this interaction had occurred. He said he was not aware of any bruises and did not acknowledge that the photo was of Bayly. I prefer and accept Amy’s version of this aspect of the incident. I do not find that Jesse intended to harm Bayly.

[235] In 2019, there was an altercation between Bayly and Jesse when Bayly refused to show Jesse her report card. Amy felt that this was Jesse’s problem and that he should have respected Bayly’s wishes when she said she did not want to show it to him. Jesse had his arms around Bayly who was kicking him, trying to hit him. When Bayly threatened to bite him, Jesse responded that she would not like what happens. Amy asked Jesse if he was “threatening their daughter” and Jesse responded that this was a “promise not a threat”.

[236] These events are concerning in terms of both parents’ actions and inactions. Jesse should not have engaged with Bayly physically. There was no suggestion it would have been unsafe or inappropriate for Jesse to walk away and wait until Bayly had de-escalated. Amy too could have taken a different approach during the second, report card incident. Even if she disagreed that Bayly should have to show her report card to Jesse, she could have backed him up initially to present a united parental front before things deteriorated. There was no evidence that Amy attempted to re-direct or calm Bayly down when she was hitting and kicking her father. Instead by asking Jesse if he was “threatening” Bayly, this transmitted to Bayly that her mother was on her side and that she was supported in defying her father.

[237] The evidence did not suggest that Bayly had suffered significant emotional or psychological harm arising from these incidents. When Bayly met with child protection worker, Angela Smith, she denied feeling fearful of her father but did feel nervous around him.

[238] Amy also alleged that Jesse deliberately “stomped” on Ryker’s foot during one of his parenting time visits. Jesse denied this. The word “stomp” was used without exception when this incident was described by Amy and the children. Amy was not present for the incident but had left to get pizza to bring back to Jesse’s house. When she returned, Ryker was crying and told her that Jesse had stomped on his foot. Amy did not ask Jesse what he said happened but instead took Ryker to one side, removed his shoe and examined his foot. There were no pictures taken of Ryker’s foot and Amy did not take him to a doctor.

[239] Ryker told Angela Smith that he does not want to have access with his father because he “says I am slow and calls Bayly the problem. He stated that his father had “stomped on his foot” and that Christine and her children are “all mean to him”. Ryker stated that he was afraid of his father.

[240] I noted that in recent months the children have taken to sleeping on the couch for a good part of their parenting time with Jesse which suggests a certain degree of comfort.

[241] Amy did not mention these incidents involving the children when she called the Durham Children’s Aid Society the first time. It was not until she called the second time that she reported that Bayly had been bruised by Jesse prior to the separation and that Jesse had stomped on Ryker’s foot. In her closing letter, Society worker Angela Smith states that there “is no evidence of Mr. Wilson being aggressive or losing control in this worker [sic] presence”; she made no other findings in terms of the children’s exposure to domestic violence.

[242] In her affidavit evidence in chief, Amy said: “at times Jesse has made some poor parenting choices but I did not view that as abusive. Even when he got physical, I viewed that as a temporary loss of control, not abuse”. In cross-examination she admitted that there was not a pattern of Bayly being physical with Jesse prior to him moving out nor was there a pattern of her disparaging him.

[243] On a visit in May 2021, Bayly and Ryker were again leaving their parenting time early. Christine was at the front door and the door hit Bayly’s leg. Christine stated that she was trying to talk to Bayly and Bayly pushed the door toward her foot. Bayly called Amy who came over to pick the children up. Amy stated that she believed that Christine had in fact “slammed the door and hurt our child”. I prefer Christine’s version of events.

[244] Amy took Bayly to see her friend Sarah Puckrin who is a registered nurse. Sarah Puckrin stated that the incident was described to her as Bayly was trying to leave, Christine pulled the door closed and Bayly’s leg got caught in the door. No one suggested to Sarah Puckrin that Christine had deliberately hurt Bayly. No one contacted the Children’s Aid Society.

[245] Amy herself acknowledged that she did not think Christine had done anything deliberate. If that was the case, there were opportunities for Amy to re-frame and reality-check with Bayly. This does not appear to have happened. Bayly told Marci Goldhar that “Christine slammed the door on my leg and I got a big bruise”.

[246] Amy’s narrative of family violence involving the children also started to develop later in the litigation. In paragraph 11 of her amended Answer dated October 19, 2021, Amy alleged that Jesse had “engaged in multiple acts of aggression toward” her and the children. That he “has struck, pushed and choked [her] in the presence of the children”. There was no credible evidence that Jesse had ever struck or choked Amy. Amy’s own evidence squarely contradicted the very serious allegation that the children had witnessed Jesse physically abusing their mother or that he had acted with aggression toward the children.

[247] The contradiction and disconnect in Amy’s narrative is concerning. On the one had Amy says that she supports Jesse’s relationship with the children. She agreed to shared parenting during the collaborative process. She later consented to my temporary order made May 26, 2021 that included the term: The Applicant and the Respondent shall communicate to and foster in the children a concept of the other parent as (I) safe. On the other hand, she continues to paint Jesse as an aggressive and abusive person, who deliberately harms his own children. This contradiction has made it difficult if not impossible for Amy to authentically support the children’s relationship with Jesse.

[248] With the two aforementioned exceptions involving Bayly noted above that occurred prior to the physical separation, I do not find that Jesse has used physical discipline with the children nor has he been inappropriately physical with them. It does not appear that the two prior incidents had a significant impact on Bayly’s relationship with Jesse until after he moved out of the house and re-partnered with Christine.

[249] It was evident from Amy’s evidence that the children report back to her regarding what happens at Jesse’s home during parenting time and that she prefers their recounting to Jesse’s. If there were incidents of Jesse losing his temper and/or being physical with either child, I am confident I would have heard about it.

[250] I find that in the face of some incredibly disrespectful and at times physically aggressive behaviour by the children, Jesse has kept his cool and reiterated to the children that he loves them and is saddened by their behaviour.

[251] Jesse’s therapist David Currie found that Jesse was frustrated and angry about the state of his relationship with the children but not angry as in presenting a risk to the children. David Currie described Jesse as steady and grounded and felt that if the children were genuinely afraid of Jesse “they would not have pulled many of the stunts that they did”.

[252] Having regard to the factors set out in s. 24(4) of the CLRA, I do not find that Jesse has engaged in family violence such as to impact on his ability and willingness to care for and meet the needs of the children. Any family violence that occurred between Jesse and Amy was sporadic, situational and that they were both involved. The two incidents involving Bayly pre-dated the parties’ physical separation and only acquired significance for Bayly and Amy after Jesse moved out. The evidence did not support a finding that Jesse has physically harmed either child since that time deliberately or otherwise. Contrary to Amy’s assertion, the evidence also does not support a finding that either child fears Jesse due to an experience of family violence or for any other reason. There are other issues that affect the ability of Amy and Jesse to cooperate on issues affecting the children, but I do not find that family violence is one of them.

2. Parental Alienation Framework

[253] There was much evidence in this trial as to the definition of parental alienation, how is it identified, and does it need to be found to be the dominant factor. Jesse asserts that Amy is engaged in parental alienation and asks the court to make a declaratory order to that effect.

[254] I am able to reach many of my conclusions with respect to the remedy in this case based on the best interests factors outlined above; however it is useful to consider the theories behind parental alienation to better understand the nuances of this family’s dynamic and to craft a parenting regime that is in the children’s best interests.

[255] Jesse called Dr. Jennifer J. Harman and she was qualified to provide expert evidence with respect to her research study of the Turning Points for Families program and parental alienation generally. Dr. Harman has a doctorate in social psychology and has a full-time appointment to the department in psychology at Colorado State University. She has written extensively on issues regarding parental alienation.

[256] Amy called Dr. Michael Saini and he was qualified to provide a critique of Dr. Harman’s research study and to also to provide expert evidence with respect to parental alienation. Dr. Saini is a professor at the University of Toronto and holds the Factor-Enterwash Chair of Law and Social Work. His research and expertise focusses on separation and divorce, parent child contact problems and gatekeeping among other things. He conducted s. 112 investigations and clinical assists for the Office of the Children’s Lawyer for 19 years and has also been retained for s. 30 assessments. He too has written extensively with respect to parent-child contact programs and was engaged in evaluating a reunification program called Overcoming Barriers.

[257] Dr. Harman and Dr. Saini both presented their evidence in a straightforward and careful manner. I did not find that either was partisan in favour of the party that called them as was alleged.

[258] Dr. Harman and Dr. Saini have a somewhat different approach to the analysis parental alienation. They did not disagree that parental alienation occurs. Professor Harman proposed a deductive Five Factor model to rule out justified rejection such as might arise out of child abuse. Professor Saini felt that this approach was too narrow and that a multi-factorial approach should be adopted to ensure that all operative factors were given appropriate weight. This is an incredibly simplified summary of their evidence that really does not do it justice but is sufficient for these reasons.

[259] Dr. Saini stated in his report that:

the scientific evidence suggests that alienation is not a diagnostic syndrome, but rather a cluster of commonly recognized behaviours that are used to undermine a child’s relationship with a parent. Merely observing these clusters of parental alienation behaviours is not the same as suggesting that these behaviours are the dominant cause of the parent-child contact problem.

[260] The court has an obligation to look at all of the circumstances surrounding the children; that is what the CLRA mandates. To this extent, the legislative analysis framework more closely aligns with that proposed by Dr. Saini. If there are indicia of parental alienation, this is one of the factors to consider in terms of the appropriate parenting order.

[261] Marci Goldhar identified some of the typical indicators of parental alienation in her interim report. The favoured parent engages in some or all of the following behaviours:

• Making negative comments about the other parent to the child
• Stating or implying that the child is in danger when with the other parent
• Stating or implying that activities, meals, and living conditions offered by the other parent are deficient or problematic
• Setting up activities that the child will enjoy during times when the child is with the other parent,
• Telling the child that it’s up to them to decide whether to visit the other parent
• Stating or implying that the child is being abused or maltreated by the other parent

[262] A cross-reference of this list to my earlier findings, evidences the fact that Amy has engaged or is engaging in many if not all of these practices.

[263] In her report, Shazeeda Haroon found the following indicators of the children unjustifiably rejecting Jesse:

• The children hold a negative perception of [Jesse], particularly that he is a bad parent.
• The children's reasons for refusing a relationship with [Jesse] are disproportionate to their response
• Collateral reports indicate a vilification of [Jesse] and a rejecting of Ms. Upton and her children with a lack of remorse
• While they once shared a positive relationship [Jesse], they no longer do
• There is a lack of hope for reconciliation
• Ryker is not able to provide depth and detail for why he is rejecting of [Jesse] and relies on statements made by Bayly
• Expresses anger at [Jesse] for not spending time with them and making them a priority, despite his making efforts to do so
• There have been non-verified allegations of abuse, which continue despite being investigated
• The children engage minimally with [Jesse] and are extremely rigid in their views of what should and should not occur during parenting time, any variation of this is viewed negatively and as more "evidence" of his poor parenting or lack of interest in them

Ms. Haroon’s findings are amply supported by the evidence that I received from Jesse, Amy and other lay witnesses.

[264] In one of her recent articles, Professor Harman describes the impact of alienation on children and how it manifests:

Parental alienating behaviors alter the child's beliefs, and memories of the alienated parent. This corruption of reality is accomplished through systematic reframing of the other parent's intentions such that even innocuous behaviors are recast as indicators of untrustworthiness. Because there is often a grain of truth, the child does not feel manipulated. Gradually, the alienating parent erodes the child's critical thinking skills and ability to trust themself, which results in internal working models of the self and others as unsafe and unloving and leads to feelings of disconnection from internal and external experiences. The child's sense of disconnection and inauthentic reality are reinforced when alienating parents repeat their false narratives to third parties as part of their alienation campaign…: …: Jennifer J Harman, Mandy L Matthewson & Amy J L Baker, “Losses Experienced by Children Alienated from a Parent” (2022) 43 Current Opinion in Psychology, at pp. 7-12.

[265] Shazeeda Haroon found that:

“Ms. Sinclair continues to have a fixed belief that Mr. Wilson is solely responsible for the current contact difficulties, believes that he has engaged abusively with the children, and that he has not made enough effort to address the concerns of the children or acknowledge, to the children, his wrongdoings.”

“The children hold strong views that Mr. Wilson should make apologies to them and should acknowledge that he has been abusive towards them. Bayly and Ryker feel their current response to Mr. Wilson is justified. The children feel Ms. Sinclair supports them as they glean from her that she understands their feelings and shares some agreement that Mr. Wilson has indeed mistreated them. Interviews with Ms. Sinclair confirm as much”.

[266] Dr. Harman differentiates estrangement from alienation. In her research she found that estrangement is actually uncommon because even children who have been abused by a parent tend to engage in attachment-enhancing behaviours…”. The alienated child's rejection of the alienated parent (absent a legitimate reason) is inconsistent with the innate need for children to maintain relationships with their caregivers”. This is illustrated by the fact that children who have been abused rarely reject other people such as grandparents whereas children subjected to alienation do.

[267] Dr. Harman goes on to describe a cascade of losses experienced by the child who is subject to alienation including:

1. Loss of individual self: “Because the alienated parent is presented as unsafe, unloving and unavailable, the child feels compelled to reject any association with that parent, including aspects of their own self”. The alienating parent uses emotional manipulation strategies to create an unhealthy cohesion, an “us vs. them” mentality. This in turn makes the child feel guilty about expressing positive feelings toward the alienated parent and in turn solidifies the unhealthy alliance with the alienating parent. This can cause the child to be unable to express personal initiative and hinders the development of an autonomous identity.

2. Loss of Childhood Innocence: The child spends excessive time and energy focusing on and prioritizing the alienating parent’s needs. The child feels entitled to make adult decisions such as the parenting schedule.

3. Loss of the “good enough” parent:

By “manipulating the child to believe the alienated parent never loved or wanted them, abandoned them, or is dangerous, the [alienating] parent corrupts the child’s previously healthy attachment to the alienated parent. Over time, the child internalizes these negative believes and harbors feelings of hurt, anger and resentment. The child comes to deny any positive feelings had toward the alienated parent and perceives them as being “all bad” compared with the alienating parent as “all good”. Eventually they resist and/or refuse contact with the alienated parent, who was by definition “good enough”.

4. Loss of extended family members

[268] It is not difficult to see and infer that Bayly and Ryker are experiencing such losses.

[269] Listening to the evidence during the trial I was struck more than once by the immense emotional energy it must have taken for these children to overcome their past, lived reality and general societal norms to reject their father, their grandmother, and other family members and treat them with such incredible disdain and hostility. Amy described the children as having impeccable manners so for them to speak to adults in such a way - particularly those to whom they were close - must create a real cognitive dissonance.

[270] Three years later, even though the children are attending regularly for parenting time with Jesse, their emotional relationship with him has not improved significantly. They continue to harbour feelings of hurt and resentment about his relationship with Christine and they feel that he has prioritized her children. The children ruminate on past events. According to Amy the children still refer to the screen door incident, to Ryker’s foot being “stomped” and to Christine “slamming” the door on Bayly. I did not see any significant effort by Amy to re-frame or contextualize these events to assist the children in having a more balanced perspective.

[271] Marci Goldhar said that in her 20 years in practice she had never seen behaviour like that toward a parent: “[the children] are being taught harshness and cruelty…to walk away from people that displease them.” Marci Goldhar did not witness any remorse or sympathy. She felt that there will be a long- term impact on the children’s self-esteem and their ability to trust their own decisions and behaviour. The children are not learning good conflict management skills, flexibility and the ability to tolerate deficits in people.

[272] Dr. Saini agreed with Dr. Harman that there are a number of possible negative outcomes for children who subjected to parental alienation. The range of outcomes can depend on the child’s own resilience; thus, building coping skills should be one of the objectives of any therapeutic intervention.

3. Remedy

[273] Jesse is requesting that the court order that he have sole decision-making authority and sole residential care of the children for a period of at least 90 days - a protective separation. He proposes to participate with the children in either the program offered by Family Bridges or Linda Gottlieb’s Turning Points for Families. Both programs involve a three to four-day therapeutic intensive period followed by varying degrees of what is referred to as “after care”.

[274] Amy proposes Alyson Jones’ Family Forward program. The children would continue to reside with her while the parties engaged in this process.

[275] At this juncture, there are very few options available to repair Jesse’s relationship with Bayly and Ryker. Time is of the essence as both children are getting older – Ryker is now 12 and Bayly is turning 15 in a couple of months. From this perspective the situation is dire.

[276] Amy states that she is committed to Jesse having a healthy relationship with the children and for this reason is supportive of a therapeutic intervention. I have concerns with the authenticity of her commitment to both.

[277] Shazeeda Haroon and Greg Koval wrote in their report that:

Ms. Sinclair believes that Mr. Wilson has engaged abusively with the children, and that he has not made enough effort to address the concerns of the children or acknowledge, to the children, his wrongdoings. Ms. Sinclair also holds the belief that other professionals have missed and overlooked what she views as the contributing factors to the contact difficulties. Ms. Sinclair focussed on the efforts she has made to encourage the relationship between Mr. Wilson and the children and maintains Mr. Wilson is primarily responsible to repair the relationship. It is the impression of the therapists that Ms. Sinclair views herself as having done all she can to improve the situation and that, she is the parent who understands the children's perspective, feels the perspective has merit and this should inform how the situation is viewed and treated in therapy. Ms. Sinclair lacks understanding that the children's concerns do not warrant the severity of their response to Mr. Wilson nor their complete rejection of him. [Emphasis added.]

[278] Amy acknowledged that before reading their report, she had confidence in Shazeeda Haroon and Greg Koval, but does not believe that their report accurately reflects their conversations.

[279] Amy has demonstrated that she is not prepared to follow recommendations from professionals that do not align with her views even while purporting to commit to their processes. This was also noted by Shazeeda Haroon and Greg Koval who reported:

“[g]iven her responses during interviews with the therapists, related to her perspective on this matter, she continues, despite having had intervention with other professionals, to be unable to consider an alternative to her perspective of change her narrative. When considered with the severity of the problem and the time the contact problems have existed, that [Amy] has historically not supported recommendations made by other therapists, these features limit the prospect of change.

[280] Amy’s sense of the pace of progress in terms of the children’s relationship with their father also reflects a certain ambivalence toward repair. She felt that the children’s relationship with their father was improving as now they actually stay at his home even though they still do not look at him, speak with him, use his bathroom, eat his food or drive with him in the car except when they are returning home. They only recently stopped wearing their masks and that appeared to come about as a result of a question that I posed toward the end of the trial.

[281] Amy called Alyson Jones to give evidence about her Family Forward program. She and her team of therapists are based in West Vancouver. Families are expected to commit to a two-year term. The Family Forward program does not require a “protective separation”; rather, the program starts with an assessment of the family and its therapeutic needs. There is a benefit to this program in that the same team of therapists is involved with the family over the long run. If it is determined that an intensive component is needed, that could take place either in B.C. or Ontario. Alyson Jones estimated the cost of her program at between $40,000 and $50,000 not including an intensive component in Ontario.

[282] Alyson Jones and her team were already supporting approximately eight families and the Wilson-Sinclair family would be scheduled around these existing clients.

[283] Alyson Jones stressed that for her program to be successful each of the parents needs to be open to change. She expressed real concern that if the favoured parent is entrenched in his or her views or unwilling to take some responsibility there will be less chance of success.

[284] I was impressed by the description of the program and the fact that Ms. Jones was open about not just the strengths of the program but the limits to it. Her program sounded very tailored and nuanced and would be a good option for many families but, unfortunately, not the Wilson-Sinclair family for reasons discussed below.

[285] The programs proposed by Jesse both require that that there be a 90-day period during which the children reside with him and have no contact with Amy. The 90-day period would be extended if Amy breached the no-contact term.

[286] Jeff Packer and Marci Goldhar felt that there were likely no other options but to place the children in Jesse’s care for a period of time.

[287] Shazeeda Haroon and Greg Koval stated in their report that they found “acute family dysfunction” and that given the “severity of the current situation, [they] consider success in ameliorating the contact problems and correcting the family dysfunction unlikely” using their stated approach which is closer to Alyson Jones’ program. They concluded their report by stating: “the literature in this domain indicates that intensive therapy is recommended in these matters, particularly when considering alternatives have failed”.

[288] Alyson Jones also agreed that the advantage of protective separations is that the parent and the children are incented to change so they can reunite.

[289] Even without the benefit of hearing from these experts, there is ample evidence to support the conclusion that if I were to leave the children in Amy’s care, there is little or no hope of Jesse having meaningful relationship with them in the foreseeable future.

[290] I am far from confident that Amy would participate in a program like Alyson Jones’ with commitment and dispatch. I can foresee more of what characterized the engagement of three prior professional teams: delays in executing the retainer contract, delays in payment, delays in scheduling meetings and most importantly a failure to follow through with those recommendations that don’t align with what Amy believes is needed.

[291] Aside from the potential for delays with this type of therapeutic engagement, there is a risk with yet another failed therapy, the chances of repair decrease even further.

[292] I had the sense that Amy was still hoping that a fresh professional face would “see it her way”. Amy’s proposal is for Jesse to have parenting time in accordance with the therapist’s recommendations. When Jesse’s lawyer asked her what she would do if the therapist recommended a protective separation from her, she indicated not that she would be prepared to follow that recommendation but that she would have to speak with her lawyer.

[293] It is not in the children’s best interests to leave the children in Amy’s care while a potentially lengthy therapeutic option is pursued. While the children may continue to do well in school and present as behaviourally balanced in Amy’s sphere, they are not addressing the various significant losses described by Dr. Harman. The children need to be given the opportunity and permission to return to the healthy and normal relationship that they had with Jesse prior to the separation.

[294] Dr. Saini cautioned that in certain cases the alienated parent might have cast themselves in the role of victim and could have a lack of sensitivity or attunement with the children. Some alienated parents may be in a “stuck state” and need to guard against thinking that if alienation stopped, all would be well. In this case, a change in the primary care parent may not be appropriate.

[295] I did not see that Jesse had adopted the role of victim. Nor did I find that he was lacking in sensitivity or attunement to Bayly and Ryker. He did not always cater to them by serving them food in the music room for example as Amy had suggested he do, but I felt that was an appropriate parental boundary. There were certain instances when he might have considered a more flexible approach, but generally speaking I found that Jesse was open to trying many different options some in which he solicited Amy’s help and others independently.

[296] I find that Jesse is well able to care for the children’s physical and emotional needs upon assuming sole parenting of them. This is not to say that this will be easy, particularly at first. However, Jesse has maintained a calm and patient approach with the children throughout and despite some incredibly challenging situations. Importantly he has demonstrated that he is open to receiving input and advice from parenting professionals and implementing that advice.

[297] Jesse proposed Linda Gottlieb’s Turning Points for Families program. Linda Gottlieb is located in Long Island, New York. She is a licensed social worker and has been working in the field for 50 years. She estimated that she had worked on roughly 700 cases involving children rejecting a parent.

[298] Under her program, the children travel with the alienated parent and possibly other family members to Long Island where they spend four days with Ms. Gottlieb in a supportive reintegration process. Ms. Gottlieb is the only therapist and she works with one family at a time. The cost of the intensive part of the program is $40,000 USD not including travel, food and lodging.

[299] Ms. Gottlieb indicated that she would continue to support the Wilson-Sinclair family by coordinating with local therapists in Ontario following the intensive period in New York.

[300] Jacqueline Vanbetlehem gave detailed evidence on behalf of the Family Bridges Program. This highly structured program also involves an order for a protective separation and a multi-day intensive program with Family Bridges’ therapists that would take place locally. The Family Bridges program does not entail follow up therapy for the alienated parent or the children as it is expected that there will be significant gains made in in the intensive program. The favoured parent is required to participate in therapy with the Family Bridge’s therapist, Dr. Parnell. The typical cost of this program ranges from $40,000 to $45,000 CAD.

[301] The Family Bridges program has been ordered by this court in a number of cases: see e.g. M.M.B. (V.) v C.M.V., 2017 ONSC 3991; E.T. v. L.D., 2018 ONSC 5132; X. v. Y., 2017 ONSC 1617.

[302] Dr. Harman gave evidence with respect to her research study regarding Linda Gottlieb’s Turning Points for Families Program. In the article co-authored by her and others entitled “Evaluation of the Turning Points for Families (TPFF) program for several alienated children” published in the Journal of Family Therapy in 2021, she describes her research and explores the initial hypotheses that multi-day intensive programs such as TPFF are safe for children, not harmful to children and would lead to some positive change in the relationship with the alienated parent. Dr. Harman’s research involved a systematic review of videos filmed of roughly 33 families over a number of years who participated in the TPFF process. Dr. Harman found support for all three hypotheses. She also acknowledged that her research did not speak to what happened when the families left the intensive program including whether the gains noted in the process were sustained.

[303] I find that it is in the best interests of the children to participate in an intensive program to “kick-start” their reunification with Jesse. Of the two programs proposed by Jesse, I prefer Linda Gottlieb’s Turning Points for Families Program. This program offered a less rigid and more tailored approach to the family than did Family Bridges program although if Turning Points for Families was not available for any reason, I would consider Family Bridges as an alternative such is the need for an expeditious intervention.

[304] The cost of Alyson Jones’ program proposed by Amy is very similar to the cost of the programs proposed by Jesse. The cost of all of the program is high but likely pales in comparison to what the parties have paid their lawyers (in Amy’s case two lawyers throughout) to litigate the case. It is hoped that if there is progress through Linda Gottlieb’s program, this will limit further, costly litigation to enforce parenting orders.

[305] Jesse and the children will benefit from continued support from therapists following the intensive part of the program. Linda Gottlieb agreed to act as the therapeutic coordinator for the family. She would provide input on the choice of therapist if need be and will ensure that they therapists working with members of the family had clear communication regarding the therapeutic goals.

[306] While I understand why therapy for the children has hitherto not been recommended as there was a risk that their false narrative could become entrenched, the children need an outlet to express their feeling and to work through some of these very challenging issues. The therapist should be someone selected by Jesse with input from and approval by Linda Gottlieb. The children may also participate together with Jesse in ongoing therapy in lieu of individual therapy if recommended by Linda Gottlieb.

[307] It is essential that Amy engage meaningfully in a course of therapy. It is crucial that she come to recognize the role that she has played in the deterioration of the children’s relationship with their father. Amy must be prepared to relinquish unfounded narratives including that Jesse will be abusive to the children, unsafe for the children, cannot be trusted, prefers Christine and her children to Bayly and Ryker. Subject to input from Linda Gottlieb, I felt that Amy’s previous therapist, Ricardo Theodoluz with whom she had a good relationship might be a good fit and he indicated a willingness to work with Amy.

[308] I have made most of the parenting orders on a temporary basis subject to review at the end of 90 days. This is an approach that has been followed in other similar cases: Bors v. Bors, 2021 ONCA 513, A.M. v. C.H. 2019 ONCA 764 and D.C. v. T.B. 2021 ONCA 850.

[309] Ultimately, it would be best for Bayly and Ryker to have a full, normalized relationship with both parents. The children need time to repair their relationship with their father unhindered by any negative influence from Amy or her parents and to learn coping skills so that they can function as individual people rather than extensions of their mother. The 90-day period is designed to allow all members of the family system to engage in learning and therapy to that end.

[310] Following the 90-day period, I will conduct a review and make those final orders that are in the best interests of the children having regard to the evidence already before the court and supplementary evidence from 90-day period.

[311] Linda Gottlieb will be meeting with Jesse and Amy to coordinate the message to the children about the transfer of residential care and their participation in the TPFF program. Amy must ensure that she follows Ms. Gottlieb’s directives and that the transfer of care is as easy for the children as possible.

[312] Readers of this decision will likely note that it is “all about” Amy. The focus of many of my findings was on what Amy had and had not done. This is because Amy has a unique and powerful role in the lives of the children. Amy is a committed and caring parent in many respects but there is one glaring and significant exception and that is not only her failure to support Jesse’s relationship with the children but her undermining of that relationship. The reason that Amy is the focus is because she has the ability to effect genuine, positive change for the children that will set them up to be emotionally balanced and healthy adults. In order to do this, she must start to reflect on her own significant role in the children’s rejection of Jesse. I very much hope that at the review, I will receive evidence that Amy is now prepared to do what is necessary to genuinely and authentically support the children in their relationship with Jesse.

V. FINANCIAL ISSUES

(a) Jesse’s Claim for Reimbursement for Amy’s share of professional’s fees and other expenses

[313] Jesse is claiming the amount of $7,545.68 for Amy’s share of certain joint expenses paid by him after the date of separation.

[314] Amy did not dispute that she did not pay her full share of Marci Goldhar’s retainer and/or fees and that Jesse paid her part so that the process could commence and ultimately the report released. Her position was that Jesse undertook to pay Marci Goldhar as a credit toward his child support obligations that he did not pay in the first six months after he moved out of the home. The letter from Brian Ludmer dated May 11, 2020 confirms that Jesse would be seeking to offset Amy’s share of the retainer against support arrears or as part of the home buy-out. The issue was not addressed by the parties’ Partial Domestic Contract dealing with the home. Jesse paid a total of $6,617.26 toward Amy’s share of these fees and he is entitled to re-imbursement. The issue of Amy’s entitlement to child support shall be addressed below.

[315] Despite the order of Scott J. dated June 4, 2020, Amy did not pay her full share of Jeff Packer’s fees and Jesse paid $1,556.25 on her behalf. She stated that Jesse paid those fees again in lieu of child support although she does not refer to any supporting documentation to evidence that agreement. Amy shall reimburse Jesse for same.

[316] Scott J. also ordered, on consent that parties utilize Our Family Wizard to communicate. The order does not specify that the fees are to be shared although typically this would be implied absent an order to the contrary. However, Amy produced a text message exchange between the parties on April 21, 2020 in which Jesse undertook to pay for Our family Wizard if Amy was agreeable to using it and for this reason, I decline to grant Jesse’s request for re-imbursement for this reason.

[317] The amounts outlined above for the professionals’ fees total more than the amount sought by Jesse. Jesse did not break down the amounts in his draft order or in his written closing submissions; therefore, I have limited the amount to the lesser amount sought.

(b) Claim for return of money that Jesse’s grandmother gifted him

[318] Jesse advanced a claim for re-payment of the sum of $10,000 that he received from his grandmother that was applied to the mortgage on the jointly owned property. It was not clear when the funds were received.

[319] Jesse does not explain why Amy should reimburse him for $10,000 as opposed to $5,000 being the amount of the benefit that Amy might have received.

[320] Amy admitted that Jesse received these funds and applied them to the mortgage.

[321] Jesse asserts that Amy agreed to give him credit for these funds. In an OFW message dated April 13, 2020 Amy wrote: “Money From Your Grandma: I already agreed to pay $5,000 of that”.

[322] Amy shall pay Jesse $5,000 in relation to the funds he paid toward the parties’ mortgage.

(c) Promissory Note from Amy to Jesse

[323] Jesse has advanced a claim for $16,342.50 that he says he loaned to Amy and that was evidenced by a series of demand promissory notes.

[324] All of the notes are in the same form but for the amount loaned and the date. They state simply “on demand, I Amy Sinclair promise to pay Jesse Wilson the sum of $X”. All of the advances were made in 2004.

[325] Amy acknowledges that she initially borrowed the funds for the down payment on their home but argues that the funds were re-paid when they re-financed their mortgage. She addresses this in the same OFW note on April 13, 2020 referred to above. She stated that Jesse took more from the joint line of credit at that time to pay various expenses from his reptile business and that he viewed that as cancelling out the amounts owing. Jesse did not address this allegation in any detail beyond a general denial and I prefer Amy’s evidence on this point.

[326] There was no evidence that Amy had made any payments toward the loan. Even if I had not found that the loan had been satisfied as part of the re-financing, I would find that Jesse’s claim was statute barred: Hare v. Hare, 2006 CanLII 41650 (ON CA), 83 OR (3d) 766, 218 OAC 164.

[327] Jesse’s claim for payment of various loans is dismissed.

(d) Re-payment for carrying costs on home

[328] Jesse has advanced a claim for re-payment of carrying costs on the home for the period from March 2019 when he moved out to June 2019 totaling $3,462.

[329] Jesse moved out of the home pursuant to an agreement of the parties.

[330] Amy asserts that Jesse had been paying the carrying costs on the home in lieu of child support.

[331] As Amy had sole possession of the parties’ jointly owned home, I find that Jesse should be re-paid for carrying costs that he incurred.

(e) Retroactive Child Support

[332] Jesse is seeking an order that Amy reimburse him for child support that he paid “on account of a false status quo imposed by self-help and manipulation”. He does not state how much this amounts to or what period it applies to.

[333] In his proposed draft order, Jesse requests an order that child support from March 2019 to present be calculated having regard to s. 9 of the Ontario Child Support Guidelines, O. Reg. 391/97 (“OCSG”), and, if necessary that he be reimbursed for any over-payment of support.

[334] Amy advanced a claim for child support (Table support and s. 7 expenses) in the “approximate amount” of $20,000 calculated from the date of separation up to the date of the trial. Amy did not provide details of her calculations.

[335] In the period from March 2019 when Jesse moved out to June 4, 2020, there was no parenting agreement or order in place. It was not disputed that when Jesse moved out of the home, the children were to be in his care for roughly half the time in a shared parenting arrangement.

[336] Child support should be payable after June 4, 2020 when Scott J. ordered that Jesse would have three, day visits with the children per week. This parenting time falls well short of the 40% threshold set out in s. 9 of the OCSG.

[337] The question is what, if any child support should be paid starting August 2019 when the children stopped attending for parenting time up to the date of Scott J.’s order.

[338] In certain limited instances, the court has sanctioned blameworthy conduct by the recipient parent. In Kopaniak v. MacLellan, [2000] OTC 447 (ONSC) the court suspended child support as incentive for the recipient parent who had abducted to return the child to the jurisdiction. Child support was re-instated upon the parent’s return with the child. In Hughes v. Hughes, 2014 BCCA 196, 376 DLR (4th) 197, the British Columbia Court of Appeal upheld the order rescinding arrears and terminating child support because the mother was still in contempt of an order awarding the father custody of the child. In Nowacki v. Nowacki, 2017 ONCJ 407, Clay J. followed the reasoning in Hughes set aside the registration of a Polish child support order after the mother abducted the child to Poland.

[339] Child support is generally considered the right of the child: D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 SCR 231, 270 DLR (4th) 297. To the extent that Amy may have engaged in blameworthy conduct, this can be considered as part of the analysis of costs rather than child support.

[340] Jesse has been paying child support in the amount of $1,202 per month but it is not clear when those payments started. He shall receive credit for any regular, child support payments made.

[341] For the period from April 1, 2010 being the first month after Jesse moved out of the home to August 1, 2019 the parties shall pay set-off child support pursuant to s. 9 of the Guidelines. Commencing August 1, 2019, Amy’s obligation to pay child support shall terminate as Jesse’s parenting time was well below the 40% threshold.

[342] Jesse’s income for 2019 was $100,685 (combined employment and business income) according to his Notice of Assessment. He shall pay child support to Amy commencing April 1, 2019 in the amount of $1,480 per month.

[343] Amy’s income for 2019 according her Notice of Assessment was $95,945 made up of employment income of $81,374 and other income. Amy had union dues of $1,052. Amy’s Table child support obligation is $1,409 payable from April 1, 2019 to August 1, 2019.

[344] Jesse’s income for 2020 was $78,435 according to his Notice of Assessment. He shall pay child support to Amy commencing June 4, 2020 in the amount of $1,187 per month.

[345] Jesse’s income for 2021 was $85,016 according to his Financial Statement sworn October 12, 2021. He shall pay child support commencing June 4, 2021 based on his 2021 income being the Table about of $1,284 per month.

[346] As I have ordered that the children shall be in Jesse’s sole care commencing immediately, Amy shall pay child support to Jesse. Amy’s income for 2021 according to her sworn Financial Statement was $77,341.68. Commencing May 1, 2022 Amy shall pay Table child support Jesse for the two children in the amount of $1,173 per month.

[347] Jesse had initiated a claim for re-payment for Amy’s share of certain special and extraordinary expenses for the children totaling $5,194 for the children’s extra-activities between March 2019 and February 2020. He provided proof of the various expenditures in his Brief of s. 7 Expenses.

[348] Amy requested an order that the parties share equally various special and extra expenses retroactive to the date of separation. Amy provided details of her claim for similar expenses for the children totaling approximately $6,269 between May 2019 and October 2019 not including non-qualifying expenses such as passports. She did not have receipts for a number of the expenses.

[349] As the amounts incurred by each party were similar and their incomes were very similar for the same period, their claim for contribution to s. 7 expense claims is a wash.

[350] Amy requested an order that Bayly’s horseback riding and Ryker’s lacrosse be included as special and extraordinary expenses even though the children were not participating at a competitive level. These activities were put on hold in part due to COVID but also because the children had refused to allow Jesse to take them and the activities were interfering with his parenting time. I think it is important the children have an opportunity to return to the extra-curricular activities that they love. For the no-contact period, on a temporary basis I have included those activities as special and extraordinary expenses to be shared proportionate to income.

(f) Amy’s Unjust Enrichment Claim

[351] Amy brought an unjust enrichment claim in relation to the additional amount that she had to pay Jesse for his interest in their home due to the increase in the value of the property after he moved out of the home. Jesse moved out of the home on March 16, 2019. He stopped contributing the carrying costs on the home thereafter and, according to Amy, for this reason he should not have benefited from the increase in the residence’s market value or equity.

[352] Jesse’s position is that there was no deal, no consensus ad idem on the sale of his interest in the property to Amy until April 2021.

[353] The parties had originally discussed that Amy would pay Jesse $190,904.23 for his interest in the home based on a value of $755,000 for the property in March 2019 when Jesse moved out. There was no written agreement.

[354] Amy did not have her financing in order as there were delays with mortgage approval some of which was related to COVID-19. In the intervening two years the market value of the property increased significantly.

[355] Amy ultimately agreed to pay Jesse $247,004.50 in April 2021 which included a credit in her favour of $8,437.33 for 50% of the principle payments that she made on the mortgage. The parties executed a partial domestic contract that preserved certain claims including property claims.

[356] The test for unjust enrichment was set out in Kerr v. Baranow, 2011 SCC 10. The plaintiff must show that there is:

a. An enrichment of or to the benefit of the defendant

b. A corresponding deprivation of the plaintiff; and

c. An absence of juristic reason for the enrichment.

[357] Amy bears the burden of proving her claim: Granger v. Granger, 2016 ONCA 945 at para. 37.

[358] I do not find that Jesse was unjustly enriched by the delays in finalizing the transaction.

[359] Both parties benefited from the increase in the market value of the property relative to their respective interest. Jesse did not have access to his interest in the home during this two-year period of time.

[360] In Kerr, Cromwell J. states that the benefit conferred “may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he would have had to undertake”. Amy did not frame her claim as a request for Jesse to reimburse her for additional carrying costs over and above mortgage principle. However, even if I found that Jesse had benefited from Amy shouldering his share of the remaining carrying costs of the home, I would have had to consider the fact that Amy benefited from having sole possession of the home during this same period of time.

[361] I do not find that Amy suffered any deprivation as a result of the delayed agreement to finalize her purchase of Jesse’s interest.

[362] Amy’s claim for damages for unjust enrichment is dismissed.

(g) Loose Diamond and Ring

[363] Jesse advanced a claim that Amy return a loose diamond and engagement ring set that he purchased during the relationship. The parties reached a settlement of this issue during the trial and filed a Consent dated January 11, 2022.

[364] Jesse’s draft order contains a provision that Amy return the diamond and rings as contemplated by the Consent. To the extent that she has not complied with the order shall do so forthwith.

(h) Re-apportionment of Professionals’ Fees

[365] Jesse requests an order that I re-apportion fees paid to Jeff Packer, Marci Goldhar and the Restore team of Shazeeda Haroon and Greg Koval. I am prepared to consider that request as part of the overall costs of the trial.

VI. ORDERS

1. Final Parenting Orders

[1] The children’s surname shall not be changed from “Wilson”.

[2] The parties shall communicate through Our Family Wizard (“OFW”) except in the case of an urgent issue involving the children. The cost of OFW shall be shared equally.

[3] The children’s residence shall remain in Durham Region.

2. Temporary Parenting Orders

[4] The following orders are made on a temporary basis and subject to review.

(a) 90-Day Protective Separation

[5] For a period of at least 90 days and until further order of the court or agreement of the parties, the following temporary orders shall apply.

[6] The Applicant shall have sole-decision making authority for the children, Bayly Dawn Wilson born June 20, 2007 and Ryker Russell Wilson born March 10, 2010.

[7] The Applicant shall be responsible during this period for providing the Respondent with information in a timely fashion regarding the children’s school progress and any health issues not related to reintegration therapy. The Respondent shall not be entitled to obtain information directly from the children’s education or care providers during the 90-day no contact period.

[8] The Respondent shall forthwith deliver to the Applicant and he shall hold all of the children’s official documents including passports, health cards and birth certificates.

[9] Commencing upon the delivery of the children to Applicant per paragraph 16 below, the Applicant shall have sole residential care of the children for a period of at least 90 days to facilitate the restoration of his relationship with them.

[10] The Respondent shall have no contact or parenting time with the children during this 90-day period. Specifically, the Respondent shall be restricted from:

a. having any contact with the children, directly or indirectly (including through the school, extra-curricular activities, any current or future partner, extended family members or friends); and

b. causing any contact, directly or indirectly (including through the school, extra-curricular activities, any current or future partner or extended family members or friends), except as provided below, without the express written consent of the Applicant pending a review.

[11] The Respondent shall use her best efforts to ensure that her extended family, her friends, and current or future partners do not interact with the children in any manner, directly or indirectly which could (i) reasonably be viewed as a prohibited communication on her part or (ii) reasonably be viewed as impairing the counselling and therapeutic process designed to repair and protect the Applicant’s relationship with the children failing which the Applicant may seek further orders from the court including against any third-parties, on short notice if necessary.

[12] The Respondent shall not attend at the Applicant’s home except on the one occasion to transfer the children into his sole care, the children’s school or extra-curricular activities. She shall make best efforts to ensure that her family members, partner(s) and friends do not attend at these same locations.

[13] The Applicant, Respondent and the children shall cooperate in and facilitate Linda Gottlieb’s Turning Points for Families reunification therapy program. The parties shall follow the directions of Linda Gottlieb in terms of implementation. Neither party shall do anything to thwart or hinder this process or the children’s participation in it.

[14] The cost of this program (but for transportation, food, entertainment activities and overnight lodging which shall be paid for by the Applicant) shall be the responsibility of the Respondent even if the Applicant is required to pay the initial, up-front payment.

[15] The Respondent shall not inform the children of this order until she and the Applicant have had a consultation with Linda Gottlieb, and she shall follow Linda Gottlieb’s direction as to how to explain the program to the children and how to facilitate the transfer of the children to the Applicant.

[16] Unless otherwise recommended by Linda Gottlieb, the Respondent shall deliver the children into the care of the Applicant by no later than April 8, 2022 at 5:00 p.m. and the 90-day period of no contact and the provisions related thereto commence immediately upon the children being transferred to the Applicant.

[17] The Applicant shall transport the children to the New York location determined by Linda Gottlieb on a date to be determined in consultation with Ms. Gottlieb.

[18] The Respondent’s consent to the Applicant travelling with the children outside of Canada is hereby dispensed with and this order shall operate as a travel consent letter to the extent required.

[19] The Respondent shall stay at least 60 kilometers away at all times from the treatment location selected by Linda Gottlieb for the four-day intensive program. The Respondent shall direct her family, friends and any partner to stay at least 60 km away from this location.

[20] Either party can request to shorten the 90-day no contact period provided that Linda Gottlieb has first recommended this after having determined that the Respondent has sufficiently demonstrated that she is willing, and able to support the relationship between the Applicant and the children.

[21] If the Respondent has any contact, direct or indirect with the children during the 90-day no contact period, the 90-day period begins again from the date of contact. If any of the Respondent’s family members, any partner or any of her friends have contact with the children during the 90-day period, the court shall consider a request to extend the 90-day period.

[22] The Respondent shall engage in parent education services with Linda Gottlieb during the four-day intervention via electronic communication regarding the children’s needs and best interests to have a meaningful relationship with the Applicant.

[23] Linda Gottlieb shall function as the therapeutic coordinator for the family following the intensive program. The Applicant and Respondent shall not retain a therapist for individual therapy for themselves or for the children without Linda Gottlieb’s approval or court order. Linda Gottlieb shall be authorized to communicate and collaborate with the therapists for both parties. Both parties shall execute all necessary authorizations, releases, or other documents to facilitate communication, collaboration, and release of information to Linda Gottlieb. Linda Gottlieb shall be primarily responsible for reporting to the court on the therapeutic progress of the parties when necessary although reports from individual therapists may also be provided. Any additional fees charged by Linda Gottlieb after the intensive program to fulfill this role shall be shared equally by the parties.

[24] All therapeutic professionals engaged by the parties shall be provided with copies of those professional reports from Jeff Packer, Marci Goldhar and RESTORE as Linda Gottlieb deems necessary and appropriate. All therapeutic professionals shall forthwith receive a copy of Fryer J.’s reasons for judgment.

[25] The Respondent shall immediately engage in regular, timely, individual therapy with a therapist approved by Linda Gottlieb or by the court based upon the therapist’s expertise for the treatment required. The goal of such therapy should include: the Respondent learning to support the children’s relationship with their father; being able to accept the views and judgments of others as to the children’s safety and wellbeing in the care of their father; and her acceptance of the Applicant as a loving and competent father who is able to make a substantial contribution to the children’s upbringing at least equal to that of the Respondent. The cost of such therapy shall be borne by the Respondent.

[26] On the date when the Respondent transfers the children into the Applicant’s sole residential care, she shall ensure that the children have adequate supplies and clothing for a minimum of six nights, along with proof of COVID-19 vaccination, and their passports. The Respondent shall also provide to the Applicant any mementos, childhood photos and/or videos prior to the children’s departure to New York as these items are needed for the intervention. The Applicant shall also cooperate in providing any family mementos as requested by Linda Gottlieb. Upon the return from the intervention the Respondent shall provide the Applicant with all necessities for the children that are in her possession.

[27] Following the intensive program, the Applicant shall immediately engage with a therapist approved by Linda Gottlieb or by the court to assist him in fostering and renewing his relationship with the children. The cost of such therapy shall be borne by the Applicant.

[28] The Applicant shall arrange for the children to have therapy to assist and support them with the change in their residential care, with processing their experiences surrounding their parents’ separation, and to generally help the children cope and to see themselves as independent people. This therapy may take place in conjunction with therapy received by the Applicant himself. The cost of therapy for the children shall be treated as a special and extraordinary expense and shared proportionate to income.

[29] The Applicant and the Respondent shall sign all consents to release information as required by any treating professional within 24 hours of the request being made.

[30] The Durham Regional Police and any other police force or the Ontario Provincial Police, pursuant to s. 36(2) of the Children’s Law Reform Act, are directed to locate, apprehend and to deliver the children in accordance with this order.

[31] The Durham Regional Police, and any other police force or the Ontario Provincial Police, acting pursuant to s. 36(2) of the Children’s Law Reform Act, are permitted under s. 36(5) of the Act to enter and search any place where it has reasonable and probably grounds for believing that the children may be with such assistance and such force as are reasonable in the circumstances.

[32] The orders for police enforcement expire January 1, 2024.

(b) Review of Temporary Order

[33] All terms of this temporary parenting order are subject to a review at the request of either party after 90 days, except, if there has been a breach of the no-contact provisions of by the Respondent, her requested review shall take place no earlier than 90 days from the date of the last breach. If any of the Respondent’s family members, partner(s) or her friends communicate with the children, the court shall consider whether and for how long the review period should be delayed.

[34] As part of the review, the Respondent shall produce a report from her individual therapist, that demonstrates that she is ready, willing and able to support the relationship between the Applicant and the children and that she will abstain from any further behaviours/strategies to sabotage, interfere with and/or that do not proactively support the children’s relationship with the Applicant.

3. Financial Orders

[35] The Respondent shall pay to the Applicant $7,545.68 on account of her share of fees paid to Marci Goldhar, Jeff Packer and Our Family Wizard by the Applicant.

[36] The Respondent shall pay the Applicant the sum of $5,000 in relation to $10,000 he paid toward the joint mortgage.

[37] The Applicant’s claim for payment of amounts loaned to the Respondent in 2004 is dismissed.

[38] The Respondent shall pay $3,462 to the Applicant representing carrying costs on the jointly owned home paid after he vacated the property.

[39] The Respondent’s claim for damages for unjust enrichment is dismissed.

[40] An order shall issue per the Consent dated January 11, 2022 (re diamond and rings).

[41] Commencing April 1, 2019, the Applicant shall pay child support for the two children based on his 2019 income of $100,685 being the Table amount of $1,480 per month.

[42] Commencing April 1, 2019 to August 1, 2019 the Respondent shall pay child support to the Applicant for the two children based on her 2019 income net of union dues of $94,893 being the Table amount of $1,409 per month.

[43] Commencing June 4, 2020, the Applicant shall pay child support for the two children based on his 2020 income of $78,435 in the amount of $1,187 per month.

[44] Commencing June 4, 2021, the Applicant shall pay child support for the two children based on his 2021 income of $85,016 being the Table amount of $1,284 per month.

[45] The Applicant’s obligation to pay child support to the Respondent shall terminate April 30, 2022.

[46] Commencing May 1, 2022 on a temporary basis, the Respondent shall pay child support to the Applicant for the two children based on her income for 2021of $77,341.68 being the Table amount of $1,173 per month.

[47] Credit shall be given for regular Table child support payments made by the Applicant on or after August 1, 2019.

[48] Commencing March 1, 2022, the parties shall share the following special and extraordinary expenses for the children proportionate to income on a final basis except where indicated:

a. Horseback for Bayly on a temporary basis subject to the 90-day review

b. Rep Hockey for Ryker

c. Lacrosse for Ryker on a temporary basis subject to the 90-day review

d. health related expenses that exceed reimbursement by at least $100 annually.

e. such further and other expenses as the parties may agree in advance

[49] Each party’s claim for a retroactive contribution to special and extraordinary expenses prior March 1, 2022 is dismissed.

[50] Each party shall maintain the children on any plan of health benefits available for the children’s benefit through their employment.

[51] On a temporary basis, the Respondent shall designate the Applicant as the beneficiary of her life insurance policy through employment as security for her child support obligations.

[52] For as long as child support is to be paid, the Applicant and the Respondent shall provide updated income disclosure to the other each year by no later than June 1 in accordance with s. 24.1 of the Ontario Child Support Guidelines.

[53] Unless the support is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owning under the order shall be paid to the Director, who shall pay them to the person to whom they are owed

4. Other Orders

[54] Justice Fryer shall remain seized of this matter. If Justice Fryer is unavailable to deal with an urgent matter involving this case, she shall designate an alternate to judge to hear the matter.

[55] The parties shall attend virtually by Zoom before Fryer J. on May 2, 2022 at 9:30 a.m. to monitor the progress of Linda Gottlieb’s reunification program and to assist in providing further directions if necessary. Further, regular to be spoken to dates including for a date for the administrative hearing to organize the review process will be set then. For these attendances, parties need only file a very brief 17F confirmation. If there is an update from Linda Gottlieb or any of the other therapists that should be included. All documents should be uploaded to Caselines after they are filed with the court.

[56] If a date is required more urgently, the party seeking the date can write a brief letter to the Trial Coordinator on notice to the other party and Linda Gottlieb.

[57] Costs in relation to all issues shall be determined following at the conclusion of the review.

JUSTICE L.E. FRYER