Court File and Parties

COURT FILE NO.: FS-17-130-02 DATE: 20220510 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.C., Applicant AND: R.P., Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Cassandra Bruni, for the Applicant Maybelline Massey, for the Respondent

HEARD: April 22, 2022

Endorsement

Introduction

[1] The applicant (the mother) and the respondent (the father) were married in October 2006 and separated on October 1, 2009. They are the parents of E.P. (the child) aged 14. The parties’ and the child’s names have been initialized to protect the child’s privacy.

[2] On July 6, 2017 Justice Lofchik made a Final Order on consent providing for joint decision-making and equal parenting time over a rotating two-week time-sharing schedule.

[3] On December 31, 2020 the child and the mother had a disagreement and confrontation arising from the mother declining the child’s request that she be permitted to attend a New Year’s Eve party at the father’s residence during the mother’s scheduled parenting time. The child left the mother’s residence on January 1, 2021 and has continued to reside with the father since, refusing to return to the mother’s care or to spend any meaningful time with her either in person or by video call. She has also refused to spend time or engage with members of the mother’s family, including her younger half-brother D. and her maternal grandparents.

[4] On February 17, 2021 the father brought a motion to change the July 6, 2017 Final Order, seeking sole decision-making for the child and parenting time to the mother in accordance with the child’s stated views and preferences.

[5] On May 27, 2021 the parties consented to a temporary without prejudice Order providing for the mother to have contact with the child by video call two times per week from May 28 to June 17, 2021 with four in-person visits of five or seven hours each on successive weekends from May 30 to June 13, 2021. The Order also requested the involvement of the Office of the Children’s Lawyer (OCL) and that each party provide the other with a list of a minimum of two proposed counsellors for the child.

[6] The parenting time specified in the May 27, 2021 Order was extended on consent following a case conference on June 16, 2021.

[7] The scheduled video calls and in-person visits between the child and the mother provided for in the consent Order have not been successful, as the child cuts the video calls short and refuses to get into the mother’s vehicle to visit with her at her home.

[8] The counselling for the child contemplated in the May 27, 2021 Order did not proceed.

[9] The mother has accused the father of alienating the child. On August 19, 2021 she brought a motion for specified video and in-person parenting time with the child and for an order that both parties facilitate participation of the child in reunification therapy with her, or in the alternative, that the child attend individual counselling, followed by parent-child family counselling.

[10] The mother’s motion was adjourned several times to permit completion of a s. 112 Report by the OCL clinician Juliet Hylton-Campbell and due to two proposed reunification therapists advising that they were no longer accepting new assignments. The mother’s most recent amended notice of motion proposes Ms. Paula DeVeto, of London, Ontario as the reunification therapist.

[11] The father brought a cross-motion on April 12, 2022 seeking child support from the mother based upon imputed income of $85,723, in accordance with her reported line 150 income for 2019 and that the child and the mother be enrolled in individual counselling.

[12] Ms. Hylton-Campbell was unable to complete her s. 112 Report as the child refused to participate in a visit with the mother to permit their interaction to be observed. The report was therefore discontinued. Ms. Hylton-Campbell held a disclosure meeting with the mother and the father and their respective counsel on November 26, 2021 and delivered her Discontinued Report on January 10, 2022.

Issues

[13] The issues for determination on the motions are as follows:

(a) has the father engaged in alienation of the child from the mother? (b) is it in the best interest of the child to order that she undergo reunification therapy with the mother on an interim motion, based upon the current paper record before the court? (c) if not, should individual counselling for the child and/or the mother be ordered? (d) should income be imputed to the mother for child support purposes, and if so, in what amount?

Alienation and Reunification Therapy

(a) Guiding Principles

[14] Parental alienation has been defined as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship” (see Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097, at para. 3).

[15] The British Columbia Court of Appeal in Williamson v Williamson, 2016 BCCA 87 made the following important observations respecting parental alienation at paras. 39-43:

(a) alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but can also occur because of deliberate actions, both direct and indirect, on the part of a parent; (b) the reasons for a child’s decision to refuse to have a relationship with a parent need to be assessed with the particular personality and experience of the child involved. What may seem a thin or unconvincing rationale for one child may have a much more convincing force in the context of the personality and experience of another child; (c) parental alienation must be distinguished from estrangement. The difference lies in the cause; estrangement occurs when the child understandably refuses contact with a parent because of that parent's behaviour, and there is a logical and rational reason for the child's rejection of the parent. In the case of alienation, it is said there is little or no objectively reasonable cause for the child's rejection of the parent; (d) if a court finds a parent 'guilty' of alienation, that finding does not pre-determine one particular remedy. Determining an appropriate response once a finding of alienation is made is an extremely important process since it can have an impact on both the short, and long term, well-being of the child involved; (e) the legal responses to alienation will vary based upon case-specific enquiries. One response may be Court-ordered therapeutic intervention where appropriate, while recognizing "force-marching" a child to reunification may, in some cases, be unrealistic and harmful; (f) the age of the child is relevant in determining the appropriate response to alienation. Once the child becomes a teenager, it appears that remedial options become increasingly limited; and (g) the only consideration in determining what particular remedy is appropriate in an individual case is the best interests of the child. It is important to consider the child's best interest in both the short term and long term.

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

[17] Courts have differed on the question of whether expert evidence is required when considering the appropriateness of an order for reunification therapy.

[18] The Court in Williamson noted at para. 47 that, in a case where the existence of alienation and its root cause are hotly disputed by the parties and where the mechanisms available to the court to address it could have a long-term impact, alienation should be proved. Moreover, proposed responses should be supported with admissible expert evidence.

[19] In the recent case of Stavropoulos v Stavropoulos, 2021 ONSC 5753 Papageorgiou, J. observed at para. 22e. that, although it may not be required in every case, where the record consists of competing and contradictory affidavits, the failure of the party seeking an order for reunification therapy to provide expert evidence points away from making the order.

[20] To similar effect, in the case of Barrett v Huver, 2018 ONSC 2322 D.C. Shaw, J. at para. 17 found it impossible to determine, on the competing, contradictory affidavits untested by cross-examination and in the absence of any expert evidence, the reason or reasons for the fractured relationship between the father and the children.

[21] A contrasting view was expressed by P.W. Nicholson, J., albeit after an 11-day trial, in Malhotra v. Henhoeffer, 2018 ONSC 6472. At para. 107 he stated that parental alienation is a legal concept as opposed to a mental health diagnosis, and as such, the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.

[22] Nicholson, J. went on, at para 108, to observe that experts have developed a list of factors which has been cited in various cases to aid in identifying parental alienation.

[23] In O.M. v. S.K., 2020 ONSC 3816 Ryan Bell, J. at para. 46, approved of the foregoing observations of Nicholson, J. in Malhotra and adopted the four factors listed by Mackinnon, J. (derived from a qualified expert Dr. A.J.L. Baker) in Fielding v Fielding, 2013 ONSC 5102 at para. 135:

• there was a prior positive relationship with the targeted parent;
• there is an absence of abuse by the targeted parent;
• there is use of many of the alienating strategies; and
• the child exhibits most of the alienated child behaviours.

[24] The eight alienated child behaviors identified by Dr. Baker and listed by Mackinnon, J. in Fielding at para. 143 are as follows:

• Campaign of denigration of targeted parent;
• Weak, frivolous and absurd rationalizations for rejection of targeted parent;
• Lack of ambivalence about alienating parent;
• Child professes decision to cut off parent as child's independent decision;
• Absence of guilt about treatment of targeted parent;
• Reflexive support of alienating parent in parental conflict;
• Presence of scenarios borrowed from alienating parent; and
• Rejection of targeted parent's extended family.

[25] The authorities also diverge on the question of whether it is appropriate to make a finding of alienation and to order reunification therapy on an interim motion.

[26] In Hazelton v Forchuk, 2017 ONSC 2282 Gray, J. noted that where parental alienation is found to exist it is critical that it be addressed quickly on an interim motion, stating as follows at para. 2:

Regrettably, there is no real alternative other than to deal with this issue by way of an interim motion. If there is anything everyone agrees on, whether it be lawyers, experts or judges, it is essential that a parental alienation case be dealt with quickly. As a practical matter, if it is to be dealt with quickly it must be resolved by way of a motion, long before trial. That means, of course, that a judge must deal with the matter on the basis of a less-than-perfect record. As is usual, affidavits markedly conflict and there is no cross-examination. What emerges from the motion is an order that is likely to be final in many respects, in practical terms, while interlocutory in form.

[27] Significantly, Gray, J. added at para. 3 that, notwithstanding the imperfections in the record, he was able to make a determination in the case based on logical inferences from largely undisputed facts.

[28] To similar effect, in O.M. v S.K. Ryan Bell, J. held at para. 27 that, where the issues of decision-making and parenting time are urgent in nature, the motion judge may appropriately resolve the issue of credibility where it is clear that statements made in the affidavits are inaccurate or unreliable and that examination or cross-examination on the assertions would be a waste of time and money She added at para. 45 that a finding of parental alienation can be made at the interim stage and on a written record, particularly when the evidence overwhelmingly points to this conclusion.

[29] Audet, J. made a similar observation in MacLeod v MacLeod, 2019 ONSC 2128, stating at para. 33 that “a finding of parental alienation can be made at the interim stage and on a written record, particularly when the evidence overwhelmingly points to this conclusion.”

[30] Thus, Hazelton, O.M. v S.K. and MacLeod all support the possibility for the court to make a finding of alienation on an interim motion where the affidavit evidence is not in serious dispute or the evidence overwhelmingly supports it.

[31] Conversely, as noted above in reference to Barrett v. Huyer, where the affidavit evidence is competing, contradictory and untested on cross-examination, it may be impossible for a judge on an interim motion to draw any conclusion respecting the existence of parental alienation.

Evidence respecting alienation

[32] The evidence of the parties was extensive and detailed, each comprising multiple affidavits with associated exhibits.

The Mother’s evidence

[33] The mother’s evidence in support of her claim that the father is guilty of parental alienation may be summarized as follows:

(a) she has a very close and loving bond with the child E.P.; (b) she introduced the child to horseback riding over which she and the child have bonded. She has assigned chores to the child as she is trying to teach the child responsibility and a strong work ethic. The chores are directly linked to the child’s ability to keep doing what she loves - horseback riding; (c) on New Year’s Eve 2020 she and the child had a disagreement. The child made a request to go to a New Years Eve party at the father’s residence during her scheduled parenting time. The mother went to take the child’s phone away in order to continue the conversation. The child responded by screaming at her, which was uncharacteristic. In anger, she told the child that if she wanted to go to the father’s party she would take her and instructed her to get into the car but she refused. After they returned home from the barn the child seemed to be her normal self. On New Year’s Day her partner dropped the child off at the father’s residence in accordance with the schedule. The child appeared to be her normal happy self when she departed; (d) on January 1 and 2 the child messaged her, and the conversations were normal. Since that time the child has sent messages indicating that she misses her, that she loves her, but she did not want to see her; (e) she subsequently learned that the father’s spouse J.P. had messaged the child in the week leading up to the New Year. The messages advised the child to “set boundaries” with the mother and told her that “her happiness depended on it;” (f) the messages from J.P. included the following statements “your (sic) lucky you have us and you need to start thinking about yourself and what makes you happy. Your dad and I always think what is best for you but if your mom does not care how you feel then you need to start thinking about you;” (g) during the summer of 2020 scheduling issues emerged involving the father setting up a birthday celebration for J.P.’s son J.M. during the mother’s summer parenting time. The father sent the child text messages involving her in the dispute, which included the following statements:

• you have to stand up to her. And if you can’t. That’s on you;
• I was not telling you those things to hurt you. I was saying it so you understood what you are doing is wrong. Bring your phone with you when you drop off your present as well because as I said you proved you are not mature enough to have it;
• I have sugar coated the tricks your mom pulls for too long. And you fell for it. Again. She’s now ruined 10 out of 11 of his birthdays. The phone was given to you so that we could help you when things go wrong there. But you do not stand up for yourself and let your mom control your life and ours. So until you can prove that you have a mind of your own you don’t have that phone;

(h) throughout the past several years the father has persistently implied or directly stated that she abuses the child. She denies that she is abusive towards the child. She is concerned that the father and his spouse have convinced the child that she is abusive; (i) in August, 2020 she wanted the child and her son to attend school in-person. The child informed her that the father had told her it that if she attended school in-person she would be obliged to live with the mother and that she could not visit her paternal family. The father is immune-compromised; (j) the father did not canvas with her whether to enroll the child in remote learning or in-person schooling for the 2020-2021 academic year before providing her with an ultimatum; (k) in August 2020 the child advised that she wanted to primarily live with her; (l) the consent temporary without prejudice Order dated May 27, 2021 has not been followed. The child terminates most calls shortly after she calls her. The child refuses to get into her vehicle so they simply have short exchanges in front of the father’s residence; (m) on Sunday, May 30, 2021 she picked the child up without an issue. Initially the child seemed excited to see her step-brother D. The child repeatedly told her that she was abusive towards her. When the mother asked the child to elaborate so she could address any behaviours that the child felt were abusive, the child proceeded in what appeared to be a rehearsed manner and she was unresponsive to her comments or questions. She continually assured the child that she loved her and, through tears, the child told her that she loved her but wanted to go back to her father’s residence; (n) during a video call on June 3, the child was abrasive and repeatedly indicated that she should not have to see her because she was abusive towards her; (o) when she attended at the father’s residence on June 5, 2021 the child refused to get into the vehicle and told the mother that she had been abusive. She said that this has nothing to do with her father and “mother” (meaning the father’s spouse J.P.) and that she was making these decisions herself. It appeared that the child was aware that there was an allegation regarding parental alienation; (p) she had a series of visits with the child between June 12 and August 14 which were all short. The child acknowledged her but would not really engage with her. The child was often silent or gave one-word answers; (q) during the very short interchanges she repeatedly told the child that she loved her and she wanted to understand what was prompting the child to feel this way and anything that she could do to fix it. When she asked the child how she had been abusive so she could correct any behaviour that the child believes it was abusive, the child indicated (i) she was abusive on New Year’s Eve; (ii) she forced her to bring her iPad to her father’s residence when she already has an iPad there; (iii) she called her during “dad’s time” and (iv) she does not want her, did not want her, did not support her financially and never loved her; (r) throughout the child’s video calls and two in-person interactions she noticed that the child was parroting the father’s position in the litigation. Specifically, the child offered the following examples of how she is abusive: (i) asking the child to make dinner for the family on a single occasion; (ii) the fight on New Year’s Eve; (iii) permitting the child to bring an iPad to her father’s residence; and (iv) calling the child and not providing her with space; (s) neither the father, nor his wife J.P. have ever attempted to intervene to encourage the child to have parenting time with her; (t) in November 2021 she made the difficult decision to stop calling the child as she was concerned that her contact was distressing to the child. She has not had any in-person, telephone or video call contact with the child since that time; (u) she attempted to arrange visits for Christmas but the father would not respond. She received a text message from the child stating that she did not want a gift from her. She left a gift for the child outside of the father’s residence on her birthday, however it was returned to her front yard the following day; (v) the father has never attempted to talk to her when she arrived at his residence nor has he come out to speak with her during any of the numerous times that the child has returned to his residence after the short parenting time visits; (w) the father has stopped responding to her emails and has not provided her with any updates on how the child is doing in school, or with respect to her health care;

The father’s evidence

[34] The father’s evidence in response to the mother’s claim of alienation may be summarized as follows:

(a) the child had explained to the mother a week prior to New Year’s Eve 2020 that she wanted to spend New Year’s Eve with him and his family but the mother refused. On December 31, 2020 the child attempted to contact the father to ask to be picked up. When the child was dropped off at his residence the next day she broke down and related that she had had a physical and verbal altercation with the mother the night before which involved the mother attempting to rip the child’s phone from her hands and yelling profanities at her. The child was deeply upset when recounting these events; (b) since January 1, 2021 the child has refused to return to the mother’s home. He and his spouse have made attempts to encourage the child to continue with the court-ordered schedule, however the child remains adamant that she does not wish to reside at the mother’s home or have any contact with her; (c) the child and the mother’s strained relationship has been long-standing - since the time of separation and has progressively worsened as the child has aged; (d) he has always encouraged the child to have a positive relationship with her mother, however the mother engages in conduct that emotionally harms the child to the point that the child has developed a very strained relationship with her; (e) examples of the mother’s behaviour which he has witnessed, or the child has reported to him, include:

• the mother has changed male partners regularly and had them look after the child at home without the mother being present, which made the child feel extremely uncomfortable;
• the mother regularly brings the child to work with her and has her perform tasks that the mother is paid to do without compensating the child;
• the mother regularly roots through the child’s personal things and social media accounts, invading the child’s privacy and upsetting her;
• the mother regularly speaks to the child in a demeaning way, calling her “fat” and commenting on her weight. The child reports that she spends a lot of time in her room as she feels she is “unwanted” and “does not belong”;
• mother regularly threatens the child that if she does not obey one of the mother’s requests or does something that the mother does not approve of, that she will give the child’s pet horse away. As a result, the child feels that she is always “walking on eggshells”;
• the mother places a lot of responsibility on the child to perform all household chores such as the cooking, cleaning and looking after her younger half-brother;
• the child has been called to intervene, at the mother’s direction, at the principal’s office at times when her half-brother has gotten into trouble at school

(f) when the child was eight years old the father noticed that the child was showing signs of emotional instability, coming to his home crying regularly because of something hurtful that her mother did. The mother did not show any concern and diminished the hurt and sadness that the child was feeling. On consent of the mother he signed the child up for counselling starting in 2017. Although the child was getting help to combat the negative feelings she gets when her mother says or does something hurtful and was taught certain coping mechanisms, the counselling did not do anything to reduce the conflict between the child and the mother. The counsellor Ms. Kuiper shared with both parents that the child’s emotional distress stems from the way she was being treated by the mother. Instead of listening to the child and the counsellor the mother took steps to have the counselling with Ms. Kuiper terminated by filing a complaint to her employer; (g) since January 1, 2021 the mother has contacted the child blaming her for the situation and accusing the child of being “wrong in the head” for making the choice that she has made. Mother has also contacted the child’s teachers with emails containing details of the personal circumstances of the child, causing the child further upset and embarrassment; (h) the child has reached the age of reason and has developed her own boundaries and has requested some space from the mother. The father is respecting the child’s needs and has encouraged her to contact her mother, however he knows that the relationship between them has soured over the years. He says he has to support the child as she processes through her feelings; (i) the mother has used the child’s pet horse as a weapon at times against the child when she tries to exert her own wishes, calling the child ungrateful and threatening to sell the horse if the child does not do what she is told; (j) creating boundaries for herself is one of the lessons that the child has been tasked to work on as advised by her counsellor. The father and his spouse have supported her by encouraging her to have the courage to stick to her boundaries; (k) the mother makes the child feel as though she is incapable of making her own decisions using proper reasoning. In a text message February 10, 2021 she told the child that there is “something going on in your head” in an attempt to demean the child; (l) the events surrounding the birthday celebrations of the child’s stepbrother J.M. were misrepresented by the mother in her evidence. There is a history of the mother attempting to undermine vacation or plans for special events that had been scheduled for some time. The conversation between the father and the child in the text messages referred to by the mother was taken out of context. The father notes that the child is completely comfortable in expressing her feelings to him and he reinforces the advice that the child’s counsellor gives her that she has to learn to stand up to her mother as she is the only person that can do that while in her mother’s care; (m) the mother has misrepresented the conversation with respect to in-person schooling for the child. The father has Stage IV kidney disease and is on dialysis and awaiting a kidney transplant. He is considered “high-risk” with respect to COVID-19 and was advised by his doctor to opt for online schooling for his children if possible. He gave the child the option in August 2020 of doing school online or attending in person, in which case she would have to reside with her mother given his status as “high-risk.” The child refused this as she did not want to reside in her mother’s full-time care; (n) the father denies the mother’s assertion that her difficult relationship with the child has anything to do with him or his influence. The child has been very clear and consistent in her views about seeing her mother and has given very detailed reasons why she does not want to spend time with her mother or return to the previous schedule of equal timesharing. These reasons include:

• the mother is verbally and physically abusive towards the child;
• the applicant has called the child “fat” and constantly puts her down because of her weight or her appearance;
• the child was hurt and disappointed by the altercation that occurred on New Year’s Eve;
• the child has told the mother many times that she needs some space from her because of the altercation on New Year’s Eve, but the mother does not respect her wishes;
• the child feels harassed and pestered by the mother who would not listen to her and instead imposes her own wishes onto her. The mother has attempted to use the child’s friends and family to guilt her into contacting her;
• the mother does not respect the child’s privacy and has logged into her phone and social media accounts to review messages and posts; and
• the child did not enjoy being in the care of the mother. She reported that she was made to do a majority of the household tasks and looking after her younger half-sibling.

(o) The child has expressed that she wants to engage with the OCL clinician so that her views and preferences can be provided to the court; (p) The mother’s assumption that the father does not attempt to intervene with respect to the child not wanting to see her is incorrect. He has encouraged the child to take video calls from her mother twice a week and to meet with her mother in front of his home. He stays inside because his relationship with the mother is highly conflicted, and he wishes to avoid any conflict with the mother in the child’s presence; (q) the father does not find it necessary to update the mother on things that are not happening with respect to the child’s health. He did inform the mother that the child received her COVID 19 vaccine. He also provided the mother with information respecting the child’s enrolment in high school for September 2022. (r) the father also filed an affidavit of a neighbour at his residential complex, Geoffrey Turner, dated August 23, 2021. Mr. Turner deposed that, from his porch, he observed the child and the mother interact in front of the father’s home on about four or five occasions. Each of the interactions lasted no more than five minutes before the child walked away and went back into the house. On one occasion approximately five weeks prior to the date of his affidavit the child appeared visibly upset after an exchange with the mother and it was clear that she was crying. Mr. Turner reported that after the child went into the house the mother yelled out to him that this was a case of “parental alienation” and suggested that he be wary of anything the child was telling him. He stated that, from what he observed, the relationship between the child and the mother did not look healthy and it could be plainly seen that the child did not enjoy the visits with her mother. He stated that he had had some interactions with the child herself and described her as very upbeat and polite when she speaks with him and when she is with her father and that she speaks and acts in very mature manner for her age.

Office of the Children’s Lawyer Discontinued Report

[35] The OCL clinician Ms. Hylton-Campbell (the clinician), in her Discontinued Report indicated that she interviewed the child privately by video link on two occasions, once at the father’s home and once at her school.

[36] The clinician reported that the child engaged easily and well and seemed eager to have a voice. The child presented as an intelligent 13-year-old who is able to articulate her thoughts, views and her preferences regarding the parenting issues and with which parent she wanted to reside.

[37] In both interviews the child expressed that she wanted to remain living with her father, did not want to continue with the 50-50 parenting time schedule and wanted no visits or communication with her mother or with her half-brother D. The child reported that she needed time away from her mother to work through her issues and that her mother also needs to take time to work through the issues that continue to impact their relationship.

[38] The clinician noted that during the initial interview the child demonstrated similar emotional behaviours to that of the mother. The child stated that she has had to deal with a lot and just wanted to be happy. She stated that her relationship with her mother has broken down and that they have not been able to work through their issues.

[39] The child identified the following as issues involving her relationship with the mother:

• the mother treats her unfairly
• the mother calls her fat and remarks on her weight
• she is expected to do a lot of the chores in the home including making meals for herself and her younger brother
• she has to babysit her younger brother
• the mother will purchase food for herself on her way home from work and tell her to microwave a hotdog for supper
• mother “talks bad” behind her back, influences her friends against her, and has told her multiple times that she is “just like her dad”
• the mother is focused on herself and does not always spend quality time with her
• the mother has her perform odd jobs but has never paid her for doing these chores, telling her that she worked in exchange for the cost of boarding her horse. Since she has moved into her father’s home, her father and stepmother have informed her that her mother has engaged her in child labour

[40] The child reported that mother told her that her father, stepmother and their family were “bad people” and she has now realized that this is not true;

[41] Importantly, the child stated that she does not hate her mother, but she wants time away from her to work on her own issues and so her mother can also work on her own issues and “see what she has done to her;”

[42] The child stated that she has told her mother not to visit or to text her but she continues to do so and will not give her the space that she needs. She is starting to feel better about herself.

[43] The child reported that she has had counselling in the past to assist her with managing her emotional health and she is not sure that therapy was beneficial. She is reluctant to speak with any therapist. The therapists that she has had were focused on her repairing her relationship with her mother instead of her own issues;

[44] the child stated that when she was younger she did have a good relationship with her mother. They would engage in different activities such as eating out, birthday parties, sleepovers, shopping and doing each other’s make-up.

[45] The clinician noted that the child is reported by her school to be doing well academically and across social, emotional and behaviour domains. She is also reported to express her feelings in positive age-appropriate ways however she struggles emotionally in her relationship with her mother and her extended maternal family.

[46] The child has experienced bullying at school and has been exposed to and involved in post-separation co-parenting conflict between her parents. The clinician noted that “the trauma from the bullying, the exposure to the ongoing adult conflict and her worry about her father’s health issues appear to be the underlying factors in her emotional health issues.”

[47] The clinician stated that “although her preference is to not have any contact with her mother and she has told her to stay away, [the child] appears conflicted, where on one hand she does not want a relationship with her mother, yet is curious about what she is doing on social media and is disappointed when her mother has to reschedule her parenting time schedule or come to pick her up.”

Discussion

[48] The evidence clearly establishes that, tragically, there has been a serious fracture in the relationship between the mother and the child. Since January 1, 2021 the child has firmly refused to reside with the mother, to engage or communicate in any meaningful way with her, and has done nothing herself to reach out to the mother. Although there were attempts to re-establish meaningful contact between the mother and the child, by video conference and in-person following the May 27, 2021 consent Order, these attempts were unsuccessful and were ultimately discontinued by the mother in November, 2021. There has been no contact since then.

[49] It is evident that the culminating event leading to the fracture in the relationship was the disagreement/confrontation between the mother and the child surrounding the 2020/2021 New Year. However, the evidence of the parties is seriously conflicting with respect to the nature of the mother/child relationship prior to that event. The mother maintains that the child’s reactions to her at New Year’s were uncharacteristic and inexplicable given their close relationship, whereas the father asserts that the strained nature of the relationship has existed since separation, becoming worse over time.

[50] The root causes for the breakdown in the relationship, and in particular for the child’s rejection of the mother, are also hotly contested in the affidavit material, with each party blaming the other.

[51] The mother states that until the New Year’s events she and the child had a close and loving relationship. She asserts that the father and his spouse have influenced and pressured the child to reject her as a parent, as exemplified by specific text messages sent to the child, including texts from the father in August, 2020 concerning a disagreement regarding the child’s attendance at J.P.’s son’s birthday party and a text from J.P in the week prior to New Year’s Eve 2020. The mother also states that the father has instilled in the child inaccurate beliefs that she has been abusive towards the child and asserts that the father has done nothing to encourage the child to visit and communicate meaningfully with her.

[52] The father responds that the text messages relied upon the mother were taken out of context, as they were intended to reinforce the messages that the child’s counsellor had been conveying to her respecting the need to establish and maintain boundaries between herself and the mother in light of the mother’s inappropriate and abusive treatment of her. The father maintains that he has encouraged the child to meet and engage with the mother while at the same time respecting the child’s own decision to establish and maintain space from the mother to work on her issues regarding the relationship and to allow the mother to do the same.

[53] It is noteworthy that the father consented to the Order dated May 27, 2021 and the continuation of its terms at the case conference on June 16, 2021, indicating that he did support the resumption of contact between the mother and the child.

[54] The reliability of the affidavit evidence of both parties is hampered by the presence of extensive hearsay statements attributed to the child. It also suffers from not having been tested by cross examination.

[55] The only independent evidence offering insight into the feelings, motivations, views and preferences of the child respecting her relationship with the mother is that provided by the OCL clinician Ms. Hylton-Campbell by means of her Discontinued Report dated January 10, 2022. Although Ms. Hylton-Campbell was unable to make any recommendation regarding a parenting time schedule or decision-making due to the child refusing to attend an observation visit with the mother, she did report at some length on what the child related to her in two separate interviews and provided commentary on the information obtained from the child.

[56] As noted previously, the child presented as an intelligent 13-year-old (now 14), able to articulate her thoughts, views and preferences, and eager to have a voice to do so. Her expressions that she wanted to continue living with the father and wanted no visits or communication with the mother or her stepbrother D were consistent in both interviews.

[57] Ms. Hylton-Campbell expressed no concern that the child’s reasons for these preferences were not considered or thought-out, or that they did not represent her own independent views.

[58] The child gave detailed reasons for her decision not to reside with or communicate with the mother at this time. Although the reference to the father and step-mother informing her that the mother has engaged her in “child labour” through the work assigned to her in the barn is troublesome, that was the only instance in which the child ascribed an opinion regarding the mother to them. It is noteworthy that the child specifically described the mother as having denigrated the father, the stepmother and their family as “bad people” but not the reverse.

[59] It is significant that the child clearly stated that she does not hate her mother but rather wishes to have time away from her to give them both an opportunity to work on their issues. Her decision to distance herself from the mother is evidently not permanent, and therefore cannot be described as lacking ambivalence. Although the child’s reasons for rejecting the mother at this point may be reflect her stage of development as an adolescent, I am unable to find that they are weak, frivolous and absurd, viewed from her perspective.

[60] It is also noteworthy that the child acknowledged having previously enjoyed a positive relationship with the mother and has memories of engaging in enjoyable activities with her - factors that bode well for potential for repair of the relationship in the future.

[61] Although no reasons for rejection of the maternal grandparents were reported, the child did offer well-developed reasons for “not missing” her younger half-sibling D. due to what she described as his hostility and lack of respect towards her.

[62] Ms. Hylton-Campbell’s Report was silent on whether parental alienation by the father may be occurring or had occurred, and that reunification therapy should be considered by the court to address it.

[63] There are admittedly troublesome aspects to certain of the statements in the text messages from the father and step-mother referred to in the mother’s evidence. However, they are not sufficient to satisfy the high threshold required to support a finding of parental alienation, particularly on an interim motion on a paper record.

[64] The situation is complex and the exact causes of the child’s current rejection of the mother are far from clear. Ms. Hylton-Campbell made the following insightful observation in her Report:

When considering the evidence gathered during the investigation, there was a clear pattern of verbal conflict and each [parent] seemed to be using the conflict as evidence that would support them in the family court litigation.

[65] Based upon the conflicting evidence, it appears likely that the parents share responsibility for the breakdown in the relationship between the child and the mother. The father may not sufficiently recognize the importance of the child maintaining a strong and healthy relationship with the mother and his responsibility to take positive steps to actively encourage it. On the other side, the mother may not recognize her own role in causing damage to the relationship through her conduct towards the child.

[66] I am not satisfied on the record before the court that parental alienation on the part of the father has been proven. This case is unlike the cases of Hazelton, O.M. v S.K. and MacLeod in which findings of parental alienation were made on paper records on interim motions. As indicated previously, the affidavit evidence in support of the finding of alienation in each of these cases was overwhelming, which is not the situation in the case at bar.

[67] Even if I had found alienation, it is not evident that the reunification therapy proposed by the mother is the appropriate response or is in the child’s best interests, recognizing that such orders are to be made sparingly.

[68] Although the mother’s proposed therapist Ms. DeVeto is experienced and well-qualified, based upon her C.V., and the mother provided copies of her Client Intake Form and Family Treatment and Intervention Agreement, no case-specific information was provided respecting the type of therapy proposed. Specifically, no information was provided by Ms. DeVeto or otherwise, respecting the risk of emotional harm to the child from being forced to participate in reunification therapy, an issue recognized by the case law (see Williamson at para. 43, Barrett at para. 40 and Stavropoulos at para. 24).

[69] Moreover, s. 24(3)(e) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, requires that, in determining the child’s best interests, her views and preferences be taken into account, giving due weight to her age and maturity. The child expressed reluctance to speak with any therapist and specifically a therapist focused on repairing her relationship with the mother instead of her own issues.

[70] The mother did not pursue her alternative claim for an order that the child attend individual counselling for two months to be followed by parent-child therapy for her and the child.

[71] Similarly, the father did not pursue the claim in his cross-motion that the child be enrolled in individual counselling.

[72] The mother did not pursue the claim in her motion for specified video call contact with the child and in-person parenting time with the child, but rather proposed that parenting time be in the discretion of Ms. DeVeto, if reunification therapy were ordered.

[73] In my view, in consideration of all the evidence and given the child’s age and her expressed views and preferences, it is appropriate to order, on a temporary without prejudice basis, that the mother have parenting time with the child in accordance with the child’s stated views and preferences.

Disposition re proposed reunification therapy and parenting time

[74] In light of the foregoing, it is ordered that:

(a) The applicant mother’s motion for an order that the parties facilitate the participation of the child in reunification therapy with Paula DeVeto is dismissed, without prejudice to either party moving for an order that the child participate in individual counselling with a specified counsellor upon showing that it is in the child’s best interest to do so; and (b) on a temporary without prejudice basis the applicant mother shall have parenting time in accordance with the child’s stated views and preferences.

Interim Child Support

[75] The father claims child support from the mother on an interim without prejudice basis commencing May 1 2022 based upon imputed income of not less than $60,000 per year.

[76] The mother acknowledges that she has an obligation to pay child support but submits that the amount should be based upon her projected 2022 self-employment income of $36,340 as set forth in her financial statement dated April 15, 2022. The stated total sum of $49,374 is not correct as it includes the Child Tax Benefit of $1,081.20 per month which is the father’s entitlement.

[77] The father argues that there are serious discrepancies in the mother’s financial disclosure. He points out that, although she reported income of $87,679 in 2018 and $85,723 in 2019 her income in 2020 dropped to $20,136 without adequate explanation. In her March 2021 financial statement the mother indicated a projected income for that year of $51,000 with expenses of $81,000. As indicated, she projected her 2022 self-employment income at $36,340, with expenses of $60,683. He says that the mother has not adequately explained how she maintains her stated expenses with her actual 2020 income and projected incomes in 2021 and 2022. He also submits that she has not adequately explained how she was able to recently obtain approval for an increase in her mortgage of $100,000.

[78] The father submits that the mother’s income should be imputed, on a without prejudice basis, in an amount equal to her annual expenses pending completion of fuller financial disclosure. He seeks an order requiring her to disclose her bank account statements from January 2020 to the present which will provide details of her deposits and expenses and to provide her application and supporting documents for the refinancing of her mortgage.

[79] The mother deposed that she was employed as an operations supervisor for Adidas between May 2018 and October, 2019, earning a base salary of $50,000 plus bonuses. She received $4700 in bonuses in her first year and $2500 in her second year. When she stopped working at her previous position at the Brantford Casino she withdrew $26,523.16 from her LIRA and RRSP.

[80] She stated that she was laid off by Adidas, along with approximately 20 other employees, in October 2019 due to corporate changes and received eight weeks of severance. In October 2019 she opened her own business and in November 2020 secured a contract with the City of Hamilton Mounted Police Unit to provide daily essential care to its horses. Pursuant to the contract with the City of Hamilton she is paid $41,500 per year and receives no benefits, pension or overtime pay.

[81] In the two years prior to her becoming employed by Adidas, the mother’s income was $40,108 in 2016 and $37,191 in 2017.

[82] Paragraph 19(1)(a) of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, where the spouses intentionally under-employed or unemployed.

[83] I am not satisfied that the reduction in the mother’s income following the loss of her employment with Adidas is indicative of intentional under-employment. Prior to her employment with Adidas she was employed between 2000 and May 2018 by OLG Casino in Brantford, as was the father. The income that she earned during her relatively brief time with Adidas was not reflective of her pattern of income for the previous 18 years, and her 2022 projected income has returned to a level comparable to her income during that period. The mother has a high school education and does not hold any professional certifications. I am not satisfied that it is appropriate to impute income to her based either on the income that she earned at Adidas or on her annual expenses, particularly on an interim basis.

[84] However, given the large discrepancy between her stated expenses in her 2021 and 2022 Financial Statements and her projected incomes for those years, it is appropriate to require her to provide the additional financial disclosure sought by the father.

[85] The mother should be ordered to pay child support on a temporary, without prejudice, basis commencing May 1 2022 in the sum of $318.60 per month based on an annual income of $36,340.

Disposition respecting interim child support

[86] In accordance with the foregoing, it is ordered:

(a) on a temporary, without prejudice basis, that commencing May 1, 2022 the applicant mother pay child support, in the sum of $318.60 per month based on an annual income of $36,340; (b) a Support Deduction Order shall issue; and (c) the applicant mother shall disclose within 30 days hereof her bank account statements from January 2020 to the present and her application and supporting documents for the refinancing of her mortgage

Costs

[87] Counsel are strongly encouraged to agree on costs. If they are unable to do so, they may deliver written submissions on costs - the respondent within 14 days of the date of release of this Endorsement and the applicant within 10 days of receipt of the respondent’s submissions. The submissions shall not exceed four (4) double-spaced pages, exclusive of Bills of Costs or Costs Outlines and Offers to Settle. All submissions shall be delivered by email to the Trial Coordinator at Brantford at the email address utilized for the release of this Endorsement.

[88] In the event that no costs submissions are received within the timeline set forth above, the parties will be deemed to have settled the issue of costs.

[89] In the event that a party does not intend to make submissions on costs, that party shall advise the court accordingly.

D.A. Broad, J. Date: May 10, 2022