COURT FILE NO.: FS-19-38 DATE: 2022-04-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C. Applicant – and – S.C. Respondent

C.C., Self-represented Ms. J. Ruskin, for the Respondent

HEARD: April 12, 2022

Conlan J.

REASONS FOR DECISION ON MOTIONS

I. Introduction

The Parties

[1] The Applicant in this proceeding is the mother, C.C., who represents herself. The Respondent is the father, S.C., whose counsel is Ms. Joelle Ruskin.

The Child

[2] The child, C.M., is eleven years old. He is this Court’s paramount concern. His best interests are what must govern the within decision.

The Motions

[3] On April 12, 2022, this Court heard two motions, one by each parent.

[4] The father moves for, among other things, a temporary suspension of all in-person contact between the child and the mother. That motion was brought first, scheduled first, and was expected to be the sole focus of the hearing on April 12th.

[5] The mother, unexpectedly, brought her own motion, also returnable on April 12th. She asks for, among other relief, an order that she be granted “immediate full custody” of the child, and she wants all contact between the father and the child to be suspended until he completes certain steps, such as therapy.

[6] This Court elected to hear both motions on April 12th, so as not to be unduly strict with the mother and not to prejudice the child by having the case return to Court in short order to deal with yet another motion in the rather lengthy and troublesome history of this case.

[7] Both parents filed lengthy affidavit evidence on the motions. Both sides gave oral submissions at Court. Both sides questioned the child’s therapist, Andrea Barclay (“Barclay”), who kindly attended at the Court’s invitation and as the Court’s witness. Barclay was provided with the key filings by both sides, before she testified. It was clear to this Court that she carefully reviewed those materials.

II. Analysis

What Led to This Court’s First Involvement in the Case

[8] In a prior decision of this Court, C.C. v. S.C., 2021 ONSC 5414, under Part II therein, the litigation history was outlined as follows, at paragraphs 5 through 19.

[5] After a lengthy trial, Justice Chozik made a Final Order dated January 8, 2021. That Final Order, including Schedule “A” attached thereto, is included in these Reasons as Appendix “B”. The reader should note that all references to the names of the parties and the child have been replaced with initials – C.C. for the mother, S.C. for the father, and C.M. for the child, and further all references to the child’s birthdate have been deleted.

[6] For an overview of what was before Justice Chozik, reference should be had to paragraphs 1 through 6 of Her Honour’s Additional Reasons for Judgment dated May 28, 2021 (“Additional Reasons”), reported at C.C. v. S.C., 2021 ONSC 3899, set out below. Note that the child, C.M., is identified as “N.” in the said Additional Reasons.

[1] The sole issue in this trial was what decision-making and parenting arrangement is in the best interests of the parties’ child, N. (age 10).

[2] The Applicant, N.’s mother, (who I will call the Mother) sought an order for joint custody, parallel decision-making and equal access or parenting time.

[3] The Mother’s position is that she is a loving and engaged parent, to whom N. is closely bonded. She testified that certain concerning post-separation conduct attributed to her is now behind her, and that she is capable of co-parenting. The Mother submits that it is in N.’s best interests to have maximum time with both parents and to maintain the status quo 50/50 parenting schedule that has been in effect since March 2020.

[4] The Respondent, N.’s father, (who I will call the Father) sought an order that he have sole custody and decision-making responsibility. He proposed a parenting schedule whereby N. would spend 5 out of 14 days with his mother. The Father also asked that certain temporary therapeutic interventions be imposed.

[5] The Father’s position is that the Mother’s post-separation conduct, fuelled to some extent by her mental health and personality traits, put N. at risk of emotional and psychological harm. Co-parenting is impossible, and not in N.’s best interests. The order sought by the Father is entirely consistent with the recommendations of Howard Hurwitz, who conducted an exhaustive assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[6] In preliminary Reasons for Judgment dated January 8, 2021, I made the Final Order sought by the Father. I had concluded that it was in N.’s best interest for the Father to have sole decision-making responsibility and an unequal parenting time schedule that resulted in N. spending slightly less than half of his time with the Mother. I also ordered that the temporary therapeutic interventions proposed by the Father be put in place. The Final Order took effect January 11, 2021.

[7] Justice Chozik’s Additional Reasons were thorough and comprehensive. Her Honour outlined the law and the Court’s task at paragraphs 116 through 122 of the Additional Reasons, reproduced below.

[116] Notwithstanding recent legislative changes, there is no dispute that the test to determine decision-making, primary residence and parenting time is the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1); CLRA, s. 24. The best interests test is the only test to be applied. Parental rights, interests and preferences play no role in this determination: Young v. Young, [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.

[117] Prior to the recent amendments, s. 16(10) of the Divorce Act required the court to give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 24 [Gordon]; Young, at pp. 117-118.

[118] In s. 16(6), as amended, the heading of “maximum contact” has been removed from the provision, but the wording remains essentially the same:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

In my view, this change in the wording of the legislation has no impact on the adjudication of the issues between these parties. It has long been established that each case turns on its own unique circumstances. The only issue is the best interests of the child in the specific circumstances of the case. Maximum contact does not – and did not - necessarily mean equal contact: Young, at pp. 44, 52.

[119] The newly enacted s. 16(2) of the Divorce Act explicitly requires that a court’s assessment of the best interests of the child give primary consideration to a child’s “physical, emotional and psychological safety, security and well-being.” The factors to be taken into account to determine a child’s best interests under the Divorce Act mirror those that are set out in s. 24 of the CLRA.

[120] Section 16 of the amended Divorce Act provides that:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[121] The list of factors contained in section 16 of the Divorce Act and section 24 of the CLRA is not an exhaustive list of considerations. All of the factors relevant to the specific case must be considered: Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284, at para. 74; Scott v. Chenier, 2015 ONSC 7866, at para. 19. The court’s assessment of the best interests of the child is to be a holistic one: S.S. v. R.S., 2021 ONSC 2137, at paras. 30-36. Ultimately, the best interests of the child are paramount to the determination of decision-making responsibility, principal residence and parenting time.

[122] My task then is to assess the evidence adduced to determine what arrangement for decision-making, primary residence and parenting time is in the best interests of N., having regard to the factors identified above. With that in mind, I now review the key evidence bearing on that issue.

[8] Justice Chozik concluded that the mother’s evidence about her willingness to co-parent the child with the father was neither credible nor reliable. That evidence was flatly rejected by the Court – paragraph 168 of the Additional Reasons, set out below.

[168] In sum, on her evidence alone, I am not satisfied that the Mother could or would co-parent N. with the Father. She continues to view the Father as a bad parent and an abuser. The evidence of all of the professionals involved with this family supports this conclusion. I concluded that the Mother’s evidence that she has put the past behind her and is prepared and able to co-parent with the Father is not credible or reliable.

[9] Her Honour found that the evidence was overwhelmingly in favour of an Order that the father have sole decision-making responsibility and be the primary residential parent for the child – paragraph 180 of the Additional Reasons, found below.

[180] The evidence in this case overwhelmingly supports the recommendations of Mr. Hurwitz that the Father have sole decision-making responsibility and primary residence with respect to N. For these reasons, I concluded that a parallel decision-making regime is not in N.’s best interests. It is in N.’s best interests that the Father have sole decision-making responsibility.

[10] Justice Chozik concluded that it was not in the best interests of the child to have equal time with both parents. Clause 195 of Her Honour’s Additional Reasons is set out below.

[195] In this case, I find that the Mother’s past conduct was directly relevant to her ability to parent. She put N. directly in the conflict, which was harmful to him. She did not, and continues not to, support N.’s relationship with his father. She continues to fuel conflict. Although N. was well adjusted at this time, the potential for a tsunami of unrest is just under the surface of what appears to be calm. I am concerned that the calm will break quickly after the conclusion of these proceedings and that N. will be thrown by the Mother into a tumultuous ocean. For these reasons, I conclude that it is in N.’s best interests that the parenting schedule be 5 out of 14 days for the Mother, as recommended by Mr. Hurwitz.

[11] Justice Chozik found that a therapeutic parenting coach was “essential” for the family – paragraph 214 of the Additional Reasons, reproduced below.

[214] In my view, a therapeutic parenting coach is essential to protect N. from harmful conduct, to help the Mother de-escalate parenting crises and to intervene should alienating behaviour continue. Without that immediate but short-term therapeutic parenting intervention in place, the risk that the Mother will continue to engage in conflict over minor parenting issues, mismanage N.’s behaviours in light of her own dysregulation, and engage N. in the conflict to his detriment is too great.

[12] Set out here is Justice Chozik’s penultimate conclusion, at paragraph 220 of the Additional Reasons.

[220] In conclusion, I find that it is not in N.’s best interests that there be parallel decision-making or an equal parenting time schedule. I have concluded that if any of the decision-making is left to the Mother, this will likely lead to continued conflict. I find that the Mother is likely to continue to involve N. in parental conflict. Given the views of the Father and her marriage that she continues to hold, the Mother is not able to co-parent with the Father. It is therefore in N.’s best interests that the Father have sole decision-making responsibility, primary residence and slightly more than half of the parenting time. It is also in N.’s best interests that therapeutic interventions be put in place, as suggested by Mr. Hurwitz.

[13] The mother’s attempt to have the Final Order made by Justice Chozik stayed pending an appeal was unsuccessful – the decision of Justice Roberts of the Court of Appeal for Ontario dated February 18, 2021.

[14] The mother’s subsequent attempt to have Justice Roberts reconsider the decision, by improperly emailing the Justice directly, was met with a short Endorsement, “no further materials will be accepted or reviewed”.

[15] What followed the Final Order of Justice Chozik was surely not what was intended by the Court or by the father. What followed was more chaos and several more Court attendances.

[16] Ultimately, Justice Chozik made an Endorsement on May 4, 2021, wherein Her Honour directed a timetable for the hearing of the father’s “motion with respect to alleged non-compliance by the [mother] with the Final Order dated January 8, 2021”.

[17] The hearing before this Court on June 22, 2021 was, effectively, the motion identified by Justice Chozik in that May 4th Endorsement. Her Honour made a further Endorsement on May 31st which, in part, dealt with the motion that was heard by this Court on June 22, 2021.

[18] On June 8, 2021, Justice Chown made a scathing Endorsement against the mother. His Honour found that the mother had repeatedly withheld the child in contravention of the January 8, 2021 Final Order of Justice Chozik. As a result, His Honour made the difficult decision to not only order that the child be returned forthwith to the father but that, pending the resolution of the motion that was heard by this Court on June 22, 2021 (originally returnable on June 18th but adjourned briefly by this Court at the request of the mother), the mother’s parenting time under the said Final Order was suspended; see paragraph 15, clause b, of Justice Chown’s Endorsement.

[19] It should be observed that the adjournment of the father’s motion on June 18, 2021 was a significant indulgence granted to the mother by this Court. Despite knowing about the father’s motion for a long time, the mother, by June 18th, had not filed proper materials in response thereto. Further, she had not given the other side advance notice of her adjournment request, although in fairness to her she may not have been able to do so since it appeared that the primary reason for the adjournment request was an injury to her dog that occurred the very morning of June 18th. In any event, the adjournment was granted because this Court recognized that the motion was seeking significant relief, and the mother was acting for herself, and a few extra days was not unreasonable to honour this Court’s duty to safeguard procedural fairness. To the credit of counsel for the father, the adjournment was not really opposed.

The Hearing Before This Court on June 22, 2021

[9] On June 22, 2021, this Court heard a motion brought by the father. He asked that the parenting terms of Justice Chozik’s Final Order be reviewed, a procedure which was expressly contemplated by that Final Order, in light of serious concerns that had been raised about the mother’s parenting.

[10] At the hearing of the father’s motion on June 22, 2021, which took place via Zoom, counsel for the father made submissions, and the mother made submissions, and each side questioned Barclay.

[11] The mother, on June 22, 2021, made many of the same allegations that she made at Court ten months later, on April 12, 2022, including that Barclay is an unprofessional and biased witness.

[12] Unfortunately, after June 22, 2021, while this Court was contemplating its decision, the mother sent numerous messages to Court staff, attempting to have this Court make orders in the interim. The Office of the Regional Senior Justice was forced to intervene.

This Court’s Decision Dated August 9, 2021, [C.C. v. S.C., 2021 ONSC 5414](https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5414/2021onsc5414.html)

[13] In most respects, the father’s earlier motion was granted, and the Final Order of Chozik J. was amended such that it curtailed contact between the mother and the child. The most salient portions of the decision of this Court are set out below, paragraphs 38, 52 through 65, and 68-69.

[38] What is in the best interests of this child, C.M.? Stability, predictability, and adherence to a schedule are crucial, in my opinion. I accept the evidence of Ms. Barclay in that regard, and I reject any suggestion by the mother that Ms. Barclay is in any way biased against her.

[52] That leaves just paragraph 5 of Appendix “A”, which paragraph seeks to vary paragraphs 15, 17, and 18 of the Final Order made by Justice Chozik (attached to these Reasons as Appendix “B”).

[53] The “Decision-Making” clauses of that paragraph 5 (clauses 1 through 3) cannot be controversial as they are what was ordered by Justice Chozik.

[54] With regard to clauses 10 and following of paragraph 5, that therapeutic parenting counselling is in the best interests of this child and this family as a whole, and all of the necessary incidentals to making that happen, has already been determined by Justice Chozik, and thus those provisions, similarly, cannot be controversial.

[55] What are hotly contested by the mother is (i) the idea of any further supervised parenting time between her and the child and (ii) the reduction of any of her parenting time with the child.

[56] In her submissions at Court on June 22nd, the mother stated that she would never again put the child through supervised parenting time because he hated it. It would be “devastating” for him, she said.

[57] To be blunt, I do not trust the mother’s reporting of the child’s sentiments. That reporting, I think, is more strategic than anything else. Ms. Barclay’s evidence, which evidence I accept, is often at odds with that of the mother in terms of how the child feels about certain things. In fact, Ms. Barclay testified that C.M.’s presentation and his statements simply do not match what the mother reports to Ms. Barclay, and that has been a “continuing pattern” in Ms. Barclay’s considerable experience with this family.

[58] I simply disagree with the mother’s position about her parenting time with the child. Paragraph 5 of Appendix “A” shall issue as presented.

[59] Although the mother was not clear in this regard, I can only assume that she takes serious issue with clause 15, in particular, of paragraph 5 of Appendix “A”. That clause means that, over a two-week period, while the mother is engaged with the therapeutic parenting counsellor, she will have in-person parenting time with the child a total of three overnights (Wednesday overnight in week one and Friday and Saturday overnights in week two).

[60] That, in my opinion, is a more than modest, but less than drastic or unreasonable, reduction from the 5 out of 14 nights contemplated in the Final Order of Justice Chozik dated January 8, 2021 (see section 5.1 of Schedule “A” to that Final Order). It is a measured response to the mother’s habitual non-adherence to that Final Order, and it is consistent with the serious findings made by Justice Chown in His Honour’s June 8, 2021 Endorsement. It is also consistent with the evidence of the child’s therapist, Ms. Barclay, who testified that the previously ordered increase in parenting time between the child and the father did not result in the child exhibiting or reporting any distress as observed by Ms. Barclay.

[61] I have turned my mind to the question of whether this is an attempt by the father to punish the mother at the expense of the child. I think not. It is meant to be temporary. It is incremental. It, I think, is in the overall best interests of the child.

[62] There is clear authority, both legislative and jurisprudential, for what the father is seeking and what this Court has decided to order.

[63] In terms of the statutory authority, that is found in clause (c) of subsection 16(3) of the Divorce Act, R.S.C., 1985, c. 3, as amended. The mother’s repeated withholding of the child is a clear sign of her unwillingness to support the development and maintenance of the child’s relationship with the father, and that unwillingness is relevant to the best interests of the child in the context of the making of a parenting or contact order.

[64] In terms of the jurisprudential authority, one example is the decision of Justice Kristjanson in Cirinna v. Cirinna, 2018 ONSC 4831. Set out below is paragraph 1 of that decision.

This is the fourth motion brought by the father in three months dealing with access. Ms. Cirinna has unilaterally denied access by Mr. Cirinna to their seven year old son GC. The mother has flagrantly disobeyed numerous court orders on access, including consent orders. It is in GC’s best interests to have a full relationship with his father, which Ms. Cirinna is determined to thwart. GC has significant behavioural problems which are exacerbated by the continuing conflict between the mother and the father. The mother’s defiance of court orders and unilateral withholding of GC, with the associated conflict, are harming GC and have the potential to cause long-term harm. The family must recognize that GC needs his parents to cease this litigation and to focus on their son. I exercise my discretion to change GC’s principal residence from the mother to the father, expand the father’s access, and set a schedule for an urgent trial on custody and access issues.

[65] C.C., like the mother in Cirinna, supra, has flagrantly and repeatedly disobeyed a Court Order, unilaterally denying S.C. his parenting time. In Cirinna, supra, the mother’s conduct led to a much more significant variation of the parenting regime in place than what has been ordered by this Court in our case.

[68] In summary, the mother has failed to comply with the Final Order of Justice Chozik dated January 8, 2021. She has engaged in repeated behaviour that has placed the child at risk by failing or refusing to return the child to the father when she was required to do so, sacrificing the structured predictability that this child needs. She has proven herself to be contemptuous or, at the very least, disrespectful of Court orders.

[69] The Order made herein is strictly necessary in the best interests of C.M. The father has established that on a balance of probabilities.

A Brief Summary of Events Post-August 9, 2021

[14] The very concerning behaviour and attitudes of the mother that precipitated the Final Order of Justice Chozik, and then continued after that Final Order was made and up to the hearing date before this Court on June 22, 2021, unfortunately, raged on after this Court rendered its decision on August 9, 2021. What follows is only a partial outline of those events, post-August 9, 2021.

[15] First, one month later, there was a Court attendance on September 14, 2021. Despite having notice of it, the mother did not attend. It was an important appearance because it dealt with certain aspects of this Court’s decision dated August 9, 2021, the formal Order that would emanate from it, costs related to the hearing held on June 22, 2021, and other ancillary matters.

[16] Second, by December 9, 2021, because the mother insisted on sending messages directly to the Court, on a frequent basis, despite repeated warnings not to do so, this Court had to take the extraordinary measure of issuing a formal Endorsement that expressly reiterated the prohibition against unsolicited communications being sent directly to the Court. In that Endorsement, there was a clear warning that further unreasonable behaviour by either litigant, but especially the mother, could result in “a punishing costs award, an order prohibiting a party from bringing any further motion without leave of the Court, and/or even a change to the existing parenting Order that is in effect. Nothing would be off the table for consideration”.

[17] The mother did not change her behaviour. In fact, third, we were back in Court less than ten days later, on December 17, 2021. On that date, this Court made the following Endorsement.

The parties and Ms. Ruskin, counsel for S.C., attended Court today, via Zoom. The attendance this afternoon was scheduled by the Court, but what precipitated it was a litany of unsolicited and improper correspondence sent by the mother, C.C., to the Court (through my judicial secretary). That correspondence contained damning allegations against the father – allegations of serious abuse of the child at the hands of S.C.

Today, C.C. does not ask this Court to make any specific order. What was an alleged dispute previously, such as the Christmas parenting schedule, no longer exists, the mother acknowledges. There is an issue that she raised today about the parenting schedule commencing in January 2022, but I am not satisfied that any further clarification to the current rotating schedule is necessary.

Ms. Ruskin, on behalf of S.C., asked today that the mother’s in-person parenting time with the child be suspended for approximately six weeks, after she enjoys some Christmas time with the boy, in light of the mother’s intransigence and her classic parental alienation tactics exhibited since this Court’s last Endorsement, issued not long ago.

That the mother is intransigent is clear. That she has made wild, unfounded, and harmful allegations against the father is equally clear. And to do so within only days of having the in-person parenting time with her son resumed after a lengthy lapse is shocking to this Court.

But, I have decided to not suspend the mother’s in-person parenting time, at least not today. I have decided to make the following order instead. This Court orders that:

(i) C.C. shall not send any further correspondence, material(s), document(s), or anything else to the Court (that includes to the filing office, or to the trial office, or to me, or to another judge, or to a judicial secretary), except (a) with leave of the Court or (b) an urgent motion that complies strictly with the Family Law Rules;

(ii) C.C. shall continue to work with Ms. Seidel and follow all of Ms. Seidel’s advice and recommendations;

(iii) C.C. shall supply Ms. Seidel with a copy of this Endorsement, forthwith;

(iv) C.C. shall pay to S.C. full indemnity costs for today’s Court attendance, including preparation therefor, which costs shall be fixed by this Court after receipt of a Bill of Costs from Ms. Ruskin’s office, which Bill shall be reviewed by me only with regard to the reasonableness of the time spent and the hourly rates charged and not with regard to the appropriate scale of costs (that scale is already determined to be full indemnity);

(v) that payment of costs by C.C. shall be made forthwith, and S.C. shall be at liberty to deduct the total sum awarded from any payment that he is liable to make to C.C.; and

(vi) the trial office shall schedule a further Conference between the parties and myself in February 2022, for an update on how things are going.

If a marked change in the mother’s approach is not evidenced by the next Conference date, then it could be that her in-person parenting time will be suspended.

Any formal Temporary Order that is taken out pursuant to the within Endorsement does not require the approval of C.C.

[18] Still, the mother did not change her behaviour. For instance, and this is just one example, fourth, on March 14, 2022, the mother sent yet another letter directly to the Court. Clearly exasperated, a staff person sent me a note, “Your Honour, I hesitate to forward this to you. Please let me know what to do”. It was very frustrating for all involved.

[19] The concerning behaviour of the mother is not limited to her harassing and belligerent messages to the Court and her repeated violations of Court directives, however. Almost immediately after her in-person parenting time with the child resumed, the mother made a report to the local child welfare agency, alleging that the father had neglected and abused the child.

[20] That report to the child welfare agency followed a series of allegations made by the mother against the father, some of them included in these unsolicited communications sent directly to the Court over the past several months. They are allegations of the most grotesque nature, including that the father starved the child, hit the child, verbally abused the child, neglected the child, and, yes, even sexually touched the child inappropriately.

[21] None of these allegations is supported by a shred of evidence. None of these allegations has been verified or supported by any investigating or supervising authority, including any child welfare agency. None of these allegations is something believed by the child’s long-time therapist, Barclay. Some of these allegations, such as the father having hit the child on December 31, 2021, have been viewed as being so spurious by independent third parties, persons in authority, those with a duty to report, such as the child’s teacher at school, that they have not been reported to the police or to child protective services.

The Positions of the Parties at Court on April 12, 2022

[22] In her submissions at Court on April 12, 2022, Ms. Ruskin did a commendable job summarizing the clear desperation of the situation currently. In short, given the chronology of events since August 9, 2021, and the clear escalation of the mother’s attempts to alienate the father from the child by making repeated allegations of abuse against him and, more recently, by commandeering the child himself in making a spurious report to his teacher at school, the only solution that is in the best interests of the child is to temporarily suspend in-person contact between the child and his mother, Ms. Ruskin submitted.

[23] At the hearing on April 12, 2022, the mother suggested that the parties could benefit from a parenting counsellor or a mediator. How in the world, I ask rhetorically, could these parents sit down with a mediator in the face of these constant allegations being made by the mother against the father? It is absurd, with respect. And, further, if she believes all of these allegations to be true, why in the world would the mother want to mediate a dispute with someone who could only be described as a monster? It makes no sense, with respect.

[24] The mother takes the position that she has not breached Court orders out of defiance but rather out of frustration. This is not a contempt hearing, and frankly it makes no difference to the result. The fact is that the mother cannot be trusted to obey Court orders.

[25] The mother advises that she has improved a lot since January 2022. This Court thinks that the mother is a smart, articulate lady who loves her child and who receives much love back from him. She has current employment, which is welcome news. Her behaviour, however, has not improved since January 2022. That she would bring her own motion asking for a complete reversal of the parenting regime since the Final Order of Justice Chozik was made, based on similar allegations of abuse that have been levelled previously and which have never amounted to anything approaching suspicion, never mind proof, while attacking Barclay with accusations of negligence, unprofessionalism, and bias, is only the latest example of the lack of any improvement on the part of the mother.

[26] The mother states that her recent allegations of malnourishment were “reactive” and made only because the child seemed to be thinner than she remembered him being. Then perhaps the only conclusion available to this Court is that the mother’s reactions cannot be trusted. They are impulsive and dangerous.

[27] The mother advises that her own therapy with Ms. Seidel has helped her greatly. This Court hopes that the said therapy continues. The mother has so much potential, with her intelligence and her industriousness, but she needs to be “contained”, as Barclay put it. Continued therapy may help with that.

[28] The mother states that she has a “secure attachment” with the child. There is, respectfully, absolutely no evidence to support that assertion.

[29] The mother suggests that she does not try to influence the child and never disparages the father in front of the child. I do not believe either of those statements. The mother’s own submissions betray those assertions. She told this Court that when the child says something to her about the father, she responds by saying words to the effect, “well you know I’m not the best person to speak to about that because I don’t have a good opinion of your father and so you best speak with someone else”. What type of message does that send to the child? What it sends, I think, is a message of “me and you against dad; we both don’t like him; I know what you’re saying, but go tell someone else”. That is disparaging against the father, and that is trying to influence the child. I am sure, however, that it goes much beyond that.

[30] “I only seek to support my son”; “we really need to hear what the child has to say”; “we need to hear the allegations”, the mother submits. Encouraging false allegations is not supporting the child. And we have heard plenty about the allegations – more than enough to know that they are unproven and unfounded.

[31] Near the conclusion of her oral submissions at Court, in answering some questions from me, the mother said something that I do not understand. It really concerns me. She stated that she would welcome the father being a part of the child’s life even if all of the allegations were investigated and confirmed to be true, provided he got some help. “We can all become a better parent”, she said.

[32] What? A man who deliberately starves his son to the point of emaciation, strikes him, verbally accosts him, neglects him, just plain does not love him, and sexually abuses him, can become a better parent to the boy? I suppose it is possible, but I think that the mother’s comment is a sign that she does not really believe the seriousness of her own allegations, and that is why she would not hesitate to have the father be an active part of the child’s life.

[33] I understand forgiveness, but this mother does not forgive. Or forget. She considers herself a champion for the child and his utmost protector, so why would someone like that say what she said? I pressed her on it, but she maintained her position. I say again, it really concerns this Court.

The Evidence of Barclay at Court on April 12, 2022

[34] Barclay has a Bachelor of Arts Degree, a Bachelor of Social Work Degree, and a Master of Social Work Degree. She is a member of the Ontario College for Social Workers and Social Service Workers, the Ontario Association of Social Workers, the Association of Family and Conciliation Courts, and the Family Dispute Resolution Institute of Ontario. She is a very experienced child therapist, a professional who has conducted formal assessments under the Children’s Law Reform Act, including section 30 assessments. She has been recognized in courts as an expert in the fields of parental alienation and family reunification. She has 22 years of experience in the child welfare industry, in addition to all of her years in private practice since 2010.

[35] Barclay testified that she is “incredibly concerned” with what she read in the materials filed by the mother on the motions. The mother’s behaviour has become even more “escalated”. Barclay is “becoming more concerned” for the child because nothing is working to keep him immunized from the mother’s terribly negative feelings about the father. Barclay testified that she is seeing concrete signs, now, of parental alienation, for example, the child telling Barclay at meetings that he was “withheld” from his mother for a precise 161 days, due to Court involvement. How the child knows that, and why he said it, are obvious, stated Barclay. He is being influenced, negatively, by his mother.

[36] Barclay was polite with and respectful of the mother during the hearing at Court. She was not at all what one would expect of a biased witness, and I reject forcefully any suggestion that Barclay is unprofessional, partial, and/or negligent in any way. In fact, she was careful to stress that the mother and the child love each other deeply, and she went out of her way to say that she cannot, in her role, make recommendations of what specific order this Court should make. She did not endorse the draft order filed by the father, though she said that such an order is not unusual in a situation like this one.

[37] Barclay testified that the child has been more stable when he is not seeing his mother, in-person. In fact, instability occurred when the in-person visits between mother and child resumed.

What is in the Best Interests of the Child, Now?

[38] I accept the evidence of Barclay. Her deep concern about the materials filed by the mother, and her observation that the mother is getting worse, not better (my words), and her direct evidence, as the child’s long-time therapist whose only duty is to try to help him, that the child has been more stable when he is not seeing his mother, leave this Court with no doubt that a very difficult decision must be made.

[39] The mother’s cross-motion is dismissed in its entirety. It is definitely not in the best interests of the child to live full-time with his mother and to have zero contact with his father, nor is it a good idea to suddenly strip the child of the one person he can talk to, in confidence, besides a parent – Barclay.

[40] The father’s motion is granted, almost entirely. I am satisfied on balance that a fairly drastic order must be made to protect this child and to allow the mother to get the help that she needs.

[41] This Court’s goal is to have the mother be an active part of the child’s life, with maximum contact that is in accordance with the child’s best interests, all this year, in 2022.

[42] If the mother cooperates, and her intelligence and her love for her child mean that she has the ability and the motivation to do so, that goal can be accomplished.

[43] A Temporary Order shall issue as per the below, with reference to the draft order filed by counsel for the father, attached hereto as Appendix “A”.

[44] Clause 1 – granted, except that the suspension shall be effective on Tuesday, April 19, 2022 (to permit the mother to have this coming holiday weekend with the child, as scheduled), and except that the telephone calls shall be supervised by someone chosen by the father, in consultation with Barclay. The second exception is in light of the evidence of Barclay, who expressed concern about there being any contact at all between mother and child during the three-month period; I have decided that supervised telephone calls should alleviate that concern.

[45] Clauses 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, and 14 – granted.

[46] Clauses 7 and 8 – denied, subject to amended wording being submitted by counsel for the father, in consultation with Barclay. I am concerned that the said relief, as currently worded, is too harsh and not in accordance with Barclay’s evidence, which evidence was to the effect that the order should be directed more towards the third party, such as the child welfare agency, and encourage that third party, once a complaint is received, to do the investigative work exhaustively but make a best effort to only interview the child if necessary and after the other investigative work has been completed. This Court will entertain amended wording to better accord with Barclay’s evidence.

[47] Clause 15 – costs shall be determined in writing. The father shall file his written submissions within thirty calendar days after April 14, 2022, and the mother shall file hers within fifteen calendar days after her receipt of the father’s submissions. No reply by the father is permitted. Each submission shall not exceed three pages in length, excluding attachments such as a Costs Outline.

[48] Temporary Order accordingly.

Conlan J. Released: April 13, 2022

APPENDIX “A”

ONTARIO Superior Court of Justice, Family Court

Court File Number: FS-19-38

at 491 Steeles Avenue, Milton, ON L9T 1Y7 (Court office address)

Form 25: Order (General)

Temporary Final x

Applicant(s) (Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any). Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).

C.C. 51 Hays Blvd #1 Oakville, ON L6H 0J1 czoque3@icloud.com

Self Represented

The Honourable Justice Conlan Judge (Print or type name)

Respondent(s) Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any). Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).

S.C. 233 Sabel Street Oakville, Ontario L6L 3V8

Joelle Ruskin JJ Integrative Family Law LLP 28 Madison Avenue Toronto, ON M5R 2S1 Tel: 416 515-8606 jruskin@jjfamilylaw.ca

Date of order

This order is made pursuant to provincial legislation only.

The court heard a motion made by (name of person or persons) The Respondent, S.C.

The following persons were in court (names of parties and lawyers in court) The Applicant, C.C. The Respondent, S.C., and his counsel, Joelle Ruskin

The court received evidence and heard submissions on behalf of (name or names) Both parties

PURSUANT TO THE DIVORCE ACT (CANADA), THIS COURT ORDERS THAT: (if not applicable, cross out this line) PURSUANT TO THE CHILDREN'S LAW REFORM ACT, THIS COURT ORDERS THAT: (if not applicable, cross out this line) PURSUANT TO THE FAMILY LAW ACT, THIS COURT ORDERS THAT: (if not applicable, cross out this line) THIS COURT ORDERS THAT (specify legislation, where applicable):

1. C.C.’s in-person parenting time with C.M. shall be immediately suspended for a period of three months (the “Three-Month Suspension”). During the Three-Month Suspension, C.C. will have unsupervised phone calls with C.M. for 15 minutes twice per week.

2. At the conclusion of the Three-Month Suspension, C.C. shall have leave to initiate an attendance before me to review the circumstances of this case for a determination as to whether C.C.’s in-person parenting time with C.M. shall resume, and under what conditions, or whether the period of suspension shall be extended (the “Parenting Review”).

3. On the Parenting Review, the onus shall be on C.C. to satisfy this Honourable Court that the resumption of her in-person parenting time is in C.M.’s best interests. The type of evidence that this Court will be looking for on such a review might include, but is not limited to: C.C. demonstrating meaningful insight into the impact of her conduct on C.M. and on S.C.; C.C. admitting that she was wrong with respect to each of her many allegations about S.C. abusing C.M.; an apology to C.M. and S.C. for the harm she has caused; C.C. acknowledging that S.C. is a safe, loving and protective parent to C.M. and that Ms. Andrea Barclay is a trusted therapist; and C.C. showing that she has sought out and is engaging in rigorous psychological treatment regarding her mental health condition, which shall include providing the therapist with a copy of this court record/compendiums prepared.

4. If, on the Parenting Review, C.C. satisfies this Honourable Court that the resumption of her in-person parenting time is in C.M.’s best interests, the parenting schedule shall revert to the Phase Two schedule set out at paragraph 5(15) of the Order dated August 9, 2021 (“August 9th Order”); namely: the Applicant shall have parenting time with C.M. overnight from Wednesday at 4:30 p.m. to Thursday at 9:00 a.m. in Week One and Friday from 4:30 p.m. to Sunday 5:30 p.m. in Week Two. During this period, the Applicant shall have phone access with C.M. for no more than 15 minutes on Sundays in Week One and Wednesdays in Week Two. This Phase Two period shall remain in place for a period of 12 months, subject to any parenting concerns being raised by the Respondent.

5. The review contemplated in paragraph 15(17) of the August 9th Order (to determine if there should be a graduation of the Applicant’s parenting time with C.M.) shall only take place on the completion of the 12-month period of Phase Two;

6. C.C. shall be at liberty to terminate the retainer of the Therapeutic Parenting Counsellor (Ms. Joanna Seidel) on April 30, 2022;

7. C.C. shall screen any allegations about S.C. that she intends on raising to any third parties, including without limitation to Halton Children’s Aid Society, the police, C.M.’s teacher or C.M.’s doctors, through a professional (the “Screener”). The Screener shall be appointed by this Honourable Court based on input from C.M.’s child therapist, Ms. Andrea Barclay;

8. If C.C. makes an allegation to a third party about S.C. or is found to be the source of a third party making such an allegation, including where the report originates from C.M., without first consulting with the Screener, C.C.’s in-person parenting time, if reinstated at that time, shall be automatically suspended and shall only resume by order of this Honourable Court on a motion by C.C.;

9. The parties shall not attend medical appointments together. In accordance with the Final Order of Justice Chozik dated January 8, 2021, S.C. shall schedule and attend medical appointments with C.M. If C.C. wishes to meet with a doctor/practitioner after-the-fact to receive a direct update, she will be at liberty to do so. C.M. shall not attend with her.

10. The non-resident parent is not to attend any of C.M.’s activities or other events that fall on the other parent's parenting time including sporting events, peer birthday parties, etc. unless mutually agreed upon in advance by the parties in writing.

11. C.M. shall be registered for summer camps for the 2022 summer school break, as follows: a. Camp Aqua Camp (overnight camp) from Sunday July 3rd to Friday July 15th; b. Golf Camp for the week of July 15, 2022; c. Golf Camp for the week of August 8, 2022; The Respondent and the Applicant shall cooperate to ensure C.M.’s attendance at those camp programs.

12. S.C. will obtain C.C.’s input on camps and extra-curricular activities for C.M., but shall have final authority to register C.M. in a camp or extra-curricular program in accordance with the Final Order of Justice Chozik dated January 8, 2021. C.C. shall cooperate to ensure that C.M. attends the programs for which C.M. is registered.

13. C.M. shall travel over the 2022 School Summer Break with the Respondent, as follows: a. Thursday June 16, 2021 (9 am) to Friday June 24, 2022 (9 am), which falls during the Respondent’s parenting time; b. Friday July 29, 2022 to Monday August 8, 2022. If the Applicant’s in-person parenting time has resumed pursuant to the terms of this Order by that time, she shall be entitled to make-up time as a result of C.M. traveling with C.C. during this period; c. Thursday August 25, 2022 (9 am) to Friday September 2, 2022 (9 am), which falls during the Respondent’s parenting time. d. During the periods that C.M. is on vacation with the Respondent, he shall call C.C. once per week at an agreed upon time by the parties.

14. Where there is a pause in C.M.’s parenting schedule (for example, holiday, overnight camp, etc.), the schedule shall resume as though the week rotation had continued uninterrupted.

15. The Applicant shall pay to the Respondent his costs of this motion, in the amount of inclusive of H.S.T.

Put a line through any blank space left on this page.

Date of signature Signature of judge or clerk of the court

COURT FILE NO.: FS-19-38 DATE: 2022-04-13 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: C.C. Applicant – and – S.C. Respondent REASONS FOR decision on motions Conlan J.

Released: April 13, 2022