I. Introduction

[1] The parties are the parents to two children: H. V. I., born , 2007, and R. O. I., born , 2009.

[2] In family law matters, one often hears the term “high conflict” being used to describe parents involved in the court system; this term does not do justice to the depth and breadth of the conflict between Mr. I. and Ms. A. and the impact that it has had on their children.

[3] The parties separated in 2010.

[4] They have been in a constant state of conflict since.

[5] Mr. I.’s wife, J. B., has actively joined the fray as has Ms. A.’s partner, S. M. Ms. B.’s ex-husband, T. W., is collaborating with Ms. A.

[6] The police have been involved numerous times. The parties have been charged more than once and have been subject to peace bonds.

[7] There have been at least five different openings with Durham Children’s Aid Society (“the Society”).

[8] The Children’s Lawyer, Ken Dutka and his clinician, Linda Bleau both of whom have many years of experience, found this to be one of the highest conflict families that they had ever worked with.

[9] The parties have been litigating ceaselessly since they separated.

[10] There have been five Motions to Change following the initial Application and six contempt motions including the one before me.

[11] The Office of the Children’s Lawyer (“OCL”) has been involved several times in different capacities, and the children have been interviewed by different clinicians.

[12] The parties have historically settled all their previous proceedings often on the eve of trial. However, neither party ever really accepted the final orders or intended to follow those parts that they did not agree with. Mr. I. always wanted more parenting time and started to press for same immediately following the final settlement. Ms. A. committed to getting therapy for the children and then did little or nothing once the court case was over.

[13] H. and R. have always lived primarily with Ms. A. They historically enjoyed regular parenting time with Mr. I.

[14] Mr. I. commenced this his most recent Motion to Change in March 2021, seeking sole decision-making authority for the children and shared parenting time in part due his concern that Ms. A. was refusing to follow through on therapy for H.

[15] On June 22, 2021, H. and her mother had an argument and H. went to stay with her father. R. joined her a few days later. Ms. A. obtained an order for police enforcement, but when she attended Mr. I.’s home with the police on July 16, 2021, H. experienced a mental health crisis and was taken to the mental health unit at Lakeridge Health where she stayed several days. The Durham Children’s Aid Society supported H. being discharged into the care of her father. Mr. I. went on a camping vacation with his children and Ms. B.’s two girls. On the way back home, Mr. I.’s car broke down on the highway. Mr. W. and Ms. A. were called to come and pick up the children. The children have remained in the care of Ms. ever since.

[16] The children have not seen or communicated with their father since August 2, 2021, but for a few very brief occasions.

[17] Mr. I. is of the view that Ms. A. is engaging in parental alienation. He is now seeking a reversal of primary residence. Ms. A. states that the children are responding to years of trauma and abuse by their father and his wife, and the children are entitled to make their own choices now.

II. Background & Chronology

[18] The parties started living together in May 2003. They separated November 2010. They were not married.

[19] Mr. I. started living with his current partner J. B. in 2012, and they married in 2015. Ms. B. has two children: E. (age 17) and G. (age 15). E. lives with her father, T. W., and G. lives with her mother and Mr. I.

[20] Ms. A. started living with her current partner, S. M., in 2014. Mr. M. has two children who are now adults and live away from home.

[21] H. is currently 15 years old; she will be turning 16 shortly. H. is in Grade Ten. H. has special educational and mental health needs. She has multiple mental health diagnoses and receives learning supports at school.

[22] R. is 13 years old; he will be turning 14 shortly. He is in Grade Eight. By all accounts, he does not have any identified mental health or educational issues.

[23] I have set out a detailed chronology below as this will illustrate the degree of dysfunction in this family and inform what options are reasonably open for the court to consider for these two children.

1. Prior History

[24] Mr. I. commenced an Application in 2011 shortly after the parties separated.

[25] Mr. I. was convicted of assaulting Ms. A. in March 2011. He received a suspended sentence and twelve months’ probation.

[26] On June 15, 2011, Ms. A. was charged with uttering death threats to Mr. I. and his previous girlfriend after he sent Ms. A. a recording of him having sex with his girlfriend. Mr. I. was later charged with breaching probation in relation to this same event.

[27] The parties had earlier charges, pre-dating the separation as well. Mr. I. was convicted of driving while impaired. Ms. A. was charged in 2003 with extortion; the charges were withdrawn in favour of a twelve-month peace bond.

[28] Ms. A. called the police on September 30, 2012, when Mr. I. would not return the children.

[29] There were three separate referrals to the Society in 2011. The first two were in relation to the criminal charges described above; the files were closed because the matter was before the family court. The third referral came from Mr. I. who complained that Ms. A. was leaving the children with maternal grandparents who he believed were not appropriate caregivers. This case was also closed as the parties were in family court.

[30] On June 28, 2012, Hatton J. made a final order, based on a mediated consent, giving Ms. A. sole custody.

[31] Ms. A. then brought a Motion to Change (1st).

[32] On March 5, 2013, Scott J. made a partial final order again based on a mediated consent that the parties would have joint decision-making, the children’s primary residence would be with Ms. A. and Mr. I. would have regular parenting time. Scott J. made a second final order on April 8, 2013, dealing with the parties’ home.

[33] The final parenting order did not conclude the conflict between the parties. Instead, it ushered in a renewed period of strife during which the parties continue to utilize not only the court, but also the Society and the police to resolve their parenting disputes.

[34] Between April 2, 2013, and August 12, 2014, there were 15 more police interventions in relation to the Mr. I., Ms. A. and their partners. The majority of the calls were initiated by Ms. A. complaining that Mr. I. was not following the parenting schedule or that he was causing conflict. Mr. I. made his share of calls with the same complaints about Ms. A.

[35] Mr. I. brought the first of many contempt motions on December 5, 2013. Salmers J. dismissed the motion, stating that it appeared to be “an expression of a desire by [Mr. I.] to change the existing order”. He also noted that both parties “demonstrated a harsh and confrontational approach…”.

[36] Ms. A. commenced a Motion to Change in January 2014 (2nd).

[37] In August 2014, following an attendance in court, J. B. deliberately hit Ms. A.’s car that was parked in the courthouse parking lot. She was charged and ultimately convicted of mischief. Ms. A. initially told the police that she and the children had been in the car at the time, but later retracted that allegation.

[38] Mr. I. brought a contempt motion (#2) in September 2014. Ferguson J. adjourned it sine die and required that both parties obtain leave of the court before initiating further motions.

[39] The OCL was engaged and conducted an assessment pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, C. C.43. The clinician, Theresa Ducey, recommended sole decision-making and primary residence to Ms. A. with specified parenting time to Mr. I.

[40] McLeod J. made a final order on consent of the parties on November 25, 2015 (“McLeod Final Order”) that tracked Ms. Ducey’s recommendations, including that Ms. A. must take the children to therapy. Mr. I. conceded the issue of joint custody, as he and Ms. A. were at gridlock and because she agreed to the therapy order.

[41] Between 2015 and 2023, there were five more police interventions in relation to disputes between Ms. A. and Mr. I., mostly in relation to allegations by one parent that the other was not following the court order in relation to parenting time. Mr. I. also contacted the police alleging that Ms. A. had forged daycare receipts.

[42] There were five separate police interventions in relation to disputes between Ms. A. and her partner, Mr. M., between June 2015 and May 2020. In most instances, Ms. A. and Mr. M. had been drinking.

[43] Mr. I. commenced a Motion to Change in June 2017 (3rd) that he later abandoned.

[44] Ms. A. commenced a Motion to Change in September 2017 (4th).

[45] Ms. A. brought a contempt motion (#3) in July 2018 that came before me. On July 5, 2018, I found Mr. I. in contempt for overholding the children. I noted, much as Salmers J. had done five years earlier, that Mr. I. appeared dissatisfied with the terms of the final order. At a later penalty phase, Ms. A. confirmed that Mr. I. had been complying with the order and she did not believe a penalty was necessary. I made no further order.

[46] In September 2018, OCL clinician, Naomi Singh produced a Voice of the Child report that confirmed that the children did not want any change to the existing parenting schedule wherein they lived primarily with their mother and had regular parenting time with their father.

[47] On November 16, 2018, I made a final order on consent that the McLeod Final Order, would remain in effect (“Fryer Final Order”). Ms. A. withdrew her claim for daycare expenses for 2016-2018. Mr. I. consented to contribute proportionate to income to orthodontic treatments, post-secondary education, medical and dental expenses for the children.

[48] Mr. I. brought a contempt motion (#4) in February 2020 that was not heard due to COVID-19 shutdowns.

2. Current Motion to Change

[49] Each party continued to express dissatisfaction with the orders that they had consented to; they were accordingly selective in their adherence to the orders.

[50] Mr. I. pressed for expanded parenting time with the children citing their views and preferences. Ms. A. refused to make modifications repeatedly referring Mr. I. back to the court order.

[51] Mr. I. pressed for H. to receive therapeutic supports for her mental health challenges. He also pressed for H. to receive a psychoeducational assessment. Ms. A. failed to take any significant steps to move these important initiatives forward contrary to the court order.

[52] Mr. I. commenced this, the 5th Motion to Change on March 8, 2021. In his pleadings he is seeking sole decision-making, shared parenting, counselling for the children and the appointment of a parenting coordinator.

[53] Ms. A. brought another contempt motion (#5) in May 2021 alleging that Mr. I. had not complied with the parenting schedule at various times. Smith J., in an undated endorsement, dismissed the motion but requested the OCL to produce a further Voice of the Child Report. Ms. A. did not submit her intake form and this process never got off the ground.

[54] On June 22, 2021, H. and her mother had an argument about screen time. Mr. I. returned to Ms. A.’s home after dropping off the children because H. had left her laptop at his place. H. was in an emotional state and asked to return home with her father. Mr. I. suggested that she should speak with her mother, but the conversation was not productive: Ms. A. felt that Mr. I. was not supporting her efforts to place reasonable limits on H., and Mr. I. felt that H. was in crisis. H. left with Mr. I. and stayed with him.

[55] R. continued to follow the regular schedule but after June 25, 2021, he too stayed at Mr. I.’s home.

[56] Mr. I. made some further efforts to have the children connect with their mother to resolve the issue. He brought the children back to Ms. A.’s home unannounced to speak with her. Ms. A. refused to engage with him as she felt it was inappropriate to have the discussion in front of the children. She also felt that his actions were just a ploy to make himself appear reasonable.

[57] Ms. A. brought an ex parte motion on July 14, 2021, in relation to Mr. I. overholding the children. I considered this motion and declined to alter the parenting schedule but did order police enforcement.

[58] Ms. A. attended Mr. I.’s home with the police on July 16, 2021. Mr. I. had not yet received a copy of the order as Ms. A.’s lawyer sent it to the wrong e-mail address.

[59] H. experienced a panic attack and was taken to Lakeridge Health mental health unit by ambulance where she was admitted for approximately five days.

[60] Ms. A. did not accept that H. was in a mental health crisis, but rather felt that this was still part of Mr. I.’s master plan to have the children live with him. Ms. A. attended at the hospital with the court order demanding that H. be released to her care. H. refused to communicate with her mother, or to permit her mother to have information about her.

[61] The Society became involved. H. was interviewed by Society worker, Matthew Sweet. Mr. Sweet noted that H. had engaged in self-harming behaviour in the past by cutting her forearms with a knife (he saw visible faint red marks). The police officer who attended on scene also noticed “old superficial cut wounds” on H.’s left arm. H. has also attempted suicide using the belt from her robe. H. had many negative comments about her experience living with her mother at that time.

[62] The Society developed a safety plan with Lakeridge Health wherein H. would be discharged to her father’s care and there would be a further follow up with Society, the parents, and their lawyers the following week. Mr. I. and Ms. A. both agreed to this plan. Ms. A. later said that she had not agreed as she had not signed anything and that the plan was forced upon her.

[63] On July 26, 2021, Leef J. granted leave for Mr. I. to bring an urgent motion to deal with counselling for the children. For various reasons, that motion does not appear to have proceeded.

[64] Mr. I., Ms. B., H., R., and Ms. B.’s two children then went on a camping vacation together. By all accounts they had a good time together and there were no issues.

[65] On August 2, 2021, on the return trip home, Mr. I.’s car broke down on the highway. E. texted her father asking him to pick up her and G. When Mr. W. arrived, H. also jumped in the car with him. Ms. A. picked up R.

[66] Ms. A. and Mr. W. had been in communication prior to this time. Mr. W. acknowledged that he and Ms. A. had been “collaborating out of fear for our children in the home of [J.B.] and [J.I.]”. Mr. W. contacted Ms. A. suggesting they meet at a service station some distance away. Before Ms. A. arrived, one of E. or G. played a video or audio recording for H. that may have influenced H. in some way.

[67] Mr. W. purported not to know about the safety plan arranged by the Society. According to Mr. W., when H. saw her mother, she jumped out his truck and ran to her mother saying: “I am so sorry, I am so sorry”.

[68] H. has not seen her father or communicated with him since that day. Mr. I. approached R. once at his school, but R. was very uncomfortable and refused to engage. Mr. I. saw R. after I suggested during one of the days of trial that he could bring over Christmas gifts. Other that these two points of contact, Mr. I. has not seen or communicated with R.

[69] The children are unable to provide a coherent explanation to their lawyer as to why they are taking such an extreme position after years of seeing their father regularly and enjoying their time with him.

[70] Ms. A. brought a motion on December 16, 2021, seeking to formally suspend Mr. I.’s parenting time altogether that was dismissed.

[71] Nicholson J. and Rowsell J. both made several subsequent endorsements requiring the parties to follow the existing order for parenting time.

[72] Ms. A. remains in breach of the parenting order, and Mr. I. is seeking a finding of contempt.

[73] The matter was originally anticipated to proceed in the May 2022 trial sittings, but the parties were not ready. It was adjourned to September 2022, but it was not reached. It was adjourned to the November 2022 sittings.

[74] Mr. I. and the Children’s Lawyer were prepared to proceed to trial in November. Ms. A. was not, and she requested an adjournment. Initially, Ms. A. stated that her lawyer was not available to represent her at trial as she “had personal matters to attend to”. Ms. A. signed a Notice of Change in Representation. Rowsell J. was left with the impression that Ms. A.’s lawyer was on a medical leave and felt there was no option but to adjourn the trial with high priority to the February trial sittings. It later turned out that Ms. A.’s lawyer was going on a vacation.

[75] When it became apparent that the trial would not proceed in November, Rowsell J. also ordered parties to commence parental reconciliation therapy with Gary Brooks.

[76] Ms. A. then levelled fresh allegations against Mr. I. that needed to be investigated by the OCL.

III. Credibility

[77] There were significant credibility issues with the parties and most of the lay witnesses in this case.

[78] I have relied on Chappell J.’s excellent summary of the law with respect to credibility set out in McBennett v. Danis, 2021 ONSC 3610, at paras. 40-41. Some of the factors for the court to consider are as follows:

Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).
Was there a logical flow to the evidence?
Were there inconsistencies between the witness' testimony and the documentary evidence?
Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
Is there other independent evidence that confirms or contradicts the witness' testimony?
Did the witness have an interest in the outcome, or were they personally connected to either party?
Did the witness have a motive to deceive?
Did the witness have the opportunity and ability to observe the factual matters about which they testified?
Did they have a sufficient power of recollection to provide the court with an accurate account?
Were there any external suggestions made at any time that may have altered the witness’ memory?
Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10).
Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?
Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).

(a) Mr. I.

[79] I found Mr. I. to be relatively frank and forthright for large parts of his evidence. He answered many questions put to him in cross-examination openly even when the answers were not favourable to him. He appeared somewhat able to reflect on his own contributions to the family dysfunction.

[80] In many other respects, Mr. I. remained entrenched in the historic narrative of conflict and opposition with Ms. A., and this negatively impacted the reliability of some of his evidence.

[81] In particular instances, I found Mr. I. not to be credible. For example, he downplayed the seriousness and duration of his separation from Ms. B. in 2019. He denied that Ms. B. had thrown eggs at Ms. A.’s home even when Ms. A. produced a text from him stating that this was the final straw in terms of his relationship with Ms. B. He also minimized the positive nature of his communication with Ms. A. during that time.

(b) Ms. A.

[82] Ms. A. also sees Mr. I. in black and white terms; she has little or no insight into her role in the conflict and this at times taints the reliability of her evidence.

[83] Ms. A. characterized Mr. I. as the “main litigator”, when in fact she has started three of the five Motions to Change and brought more contempt motions than Mr. I. Even when presented with these statistics, she refused to acknowledge that she might have been at least equally responsible for the voluminous litigation.

[84] Ms. A. appeared very concerned about narrative control. She did not always present a full or accurate picture. For example, she initially told Mr. Dutka and Ms. Bleau that her relationship with Mr. M. was “great” and there were no police attendances at their home. This in contrast to her portrayal of Mr. I.’s relationship with Ms. B. as high conflict. When the police disclosure arrived, it revealed that there were more attendances at the A./M. home due to conflict between them than in relation to her and Mr. I., or in relation to Mr. I. and Ms. B.

[85] Ms. A., at times, suggested that someone else had stated a fact when, upon closer scrutiny of the documentary evidence, she was the one who made the statement. For example, she said that Mr. I. sent her a text message admitting that he had retained the insurance money for the orthodontic claims, but the document she produced shows that she was accusing him of doing that and there is no admission by him. She also stated in her evidence in chief that H. told the previous OCL clinician that Mr. I. had instructed H. to act out at her mother’s home. When one looks at Ms. Ducey’s report, it was Ms. A. who reported this allegation to the clinician, not H. herself.

[86] When asked about certain subjects, such as her role in arranging therapy for H., Ms. A. was often evasive and significantly less credible. I found some of her evidence simply implausible such as her assertion that the cuts on H.’s arm came from her Bengal cat and not because of self-harming behaviour as H. had reported to several others including the Society worker and Dr. Khattak.

[87] Lastly, Ms. A. was inclined to deflect responsibility for changes in her evidence: her lawyer misquoted her, the OCL clinician’s report was incorrect, she is not a lawyer, so she cannot be expected to prepare court documents accurately etc.

(c) J. B.

[88] Ms. B. was, unsurprisingly, very supportive of Mr. I. in her evidence. She too is entrenched in the “us versus them” narrative and this impacted the weight the court was prepared to give some of her evidence.

[89] In many respects, Ms. B. answered questions in a direct manner acknowledging facts even when contrary to her interest. She was appropriately forthright about how she might have contributed to the conflict, including when she deliberately hit Ms. A.’s car in the courthouse parking lot. She apologized on the record to Ms. A. for this.

[90] I found other parts of Ms. B.’s evidence less reliable. For example, when asked how she got along with her ex-husband, Ted W., she said “good” - she later added that they had “been to court five times in total”. Mr. W.’s evidence on this topic, which I prefer, was that he and Ms. B. had been litigating for many years and their relationship was very high conflict.

[91] I found Ms. B. to be lacking in credibility in certain areas. She denied that she had thrown eggs at Ms. A.’s home, whereas the weight of the evidence demonstrates that she had done so. Ms. B. denied that she had ever said anything bad about Ms. A. to H., but later admitted that she had called H. “a liar like her mother”. Ms. B. denied that she had ever been involved in an incident outside the country, whereas it turned out that she had called the Jamaican police on her parents while they were on holiday together because they had allowed her girls to sleep in their room contrary to her wishes.

(d) S. M.

[92] Mr. M. initially presented as business-like and forthright in his supplementary evidence in chief, a possible voice of reason in the extended family. However, when cross-examined, he was more evasive in his responses and often became heated and oppositional.

[93] Mr. M. too has bought into the thinking that Mr. I. is all bad. For example, he suggested that Mr. I. was responsible for his arguments with Ms. A. that led to the police being called to their home on several occasions. Even when it was put to him that the police notes of the attendances reflect that the conflict between Mr. M. and Ms. A. related to other mostly petty issues, and not to Mr. I., he would not change his evidence.

[94] In his affidavit evidence in chief, Mr. M. stated: “I think I can safely say that I know [H. and R.] as well as anyone except A.”. However, he was not aware that H. had been self-harming and he was unaware that she had been diagnosed with a learning disability; in fact, he thought she had been found not to have a learning disability.

[95] Mr. M., in his affidavit evidence in chief, provided detailed evidence about Mr. I. declaring bankruptcy and leaving Ms. A. with debts when their relationship ended. When cross-examined by Mr. Dutka, he quickly said that he should not have spoken on this topic as he did not have any first-hand information and had not seen any paperwork.

[96] Mr. M. stated that “[J.] has taken A. to court 10 times in the last 10 years for various reasons” whereas Ms. A. had only taken Mr. I. to court “once or twice”. When challenged on this statement by Mr. Dutka, Mr. M. became defensive, asking “what [Mr. Dutka’s] metric was”. Even when it was put to him that Ms. A. has initiated more Motions to Change and contempt motions than has Mr. I., Mr. M. would not reconsider his evidence and stated that he found it “odd” that Mr. Dutka would suggest that Mr. I. was not the “sole driving force” behind the litigation.

[97] Mr. M. is too ready to follow the party line; to adopt Ms. A.’s narrative without inquiring as to its accuracy or acknowledging that there might be another possible narrative. This negatively impacted his credibility and the weight I was prepared to give his evidence.

(e) T.W.

[98] Mr. W. presented his evidence in a straightforward, almost dead pan manner. He appeared to listen carefully to the question and to respond as concisely as possible even when cross-examined.

[99] With some exceptions noted below, I found Mr. W.’s evidence generally credible.

(f) Linda Bleau – Office of the Children’s Lawyer Clinician

[100] The court had no issue with Ms. Bleau’s evidence, which was both credible and highly reliable.

[101] The parents conducted minimal cross-examination of Ms. Bleau and rarely contradicted her evidence.

(g) Amanda Hamer

[102] Ms. Hamer presented her evidence in an impartial and careful manner. I found her evidence both credible and reliable.

IV. Analysis

1. Parenting

[103] Pursuant to s. 29(1) of the Children’s Law Reform Act, R.S.O. c. C.12 (“CLRA”), a court shall not make an order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the children. The parties agreed that this threshold has been met. The termination of Mr. I.’s relationship with the children, the marked change in their views and preferences constitute a material change in circumstances.

[104] Mr. I.’s believes that this current state of affairs is attributable to parental alienation. He is seeking sole decision-making authority to address the fracture in his relationship with the children, and to ensure that there is follow through with therapy and educational supports. Mr. I. recognizes that there might first need to be reconciliation therapy.

[105] Mr. I. is also asking the court to find Ms. A. in contempt in relation to her failure to require the children to attend for parenting time, and her failure to follow through on therapy particularly for H.

[106] Ms. A. is seeking to retain sole decision-making for the children. She is also requesting to eliminate all the former provisions enabling Mr. I. to obtain information about the children. She proposes that any parenting time with Mr. I. would be per the children’s wishes. Ms. A. makes no proposal for how Mr. I.’s relationship with the children can be repaired.

[107] The Children’s Lawyer does not support Mr. I.’s request to change decision-making or a change residency. The children have always expressed a desire to live primarily with their mother, but for the brief period in the summer of 2021, and the Children’s Lawyer is concerned that a change in residency would be even more destabilizing for the children.

[108] In making a parenting order or contact order with respect to a child, the court shall only consider the best interests of the child as set out in CLRA, s. 24(1).

[109] In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being: CLRA, s. 24(2).

[110] I have organized my analysis of the best interests of H. and R. using the factors set out in s. 24(3) of the CLRA.

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

[111] H. is currently in Grade 10. She attends High School. She goes to school with friends from elementary school.

[112] H. enjoys drawing. She also enjoys video games and music. She is not generally into sports but enjoys swimming and is good at it.

[113] H. has been diagnosed with a learning disability. She had a psychoeducational assessment in Grade 6 and has an Individualized Education Plan (“IEP”). Currently some of H.’s marks are in the average range, but her math score was well-below average at 11%.

[114] H.’s mental health took a turn for the worse during the COVID-19 pandemic. This was observed by her parents in both of their homes. H. experienced a mental health crisis during the summer of 2021, leading to her being hospitalized for five days.

[115] Lakeridge Health diagnosed H. as having an adjustment disorder, anxiety and depression. She also met the criteria for Parent-Child Relational Problem.

[116] In his report from assessments conducted August 16, 2021, and October 18, 2021, Dr. Khattak noted that H. is “easily overwhelmed especially due to parental conflict”. Ms. A. described H. to Dr. Khattak as increasingly withdrawn, struggling with personal hygiene and lacking in motivation.

[117] Dr. Khattak noted as had other third parties that H. had previously threatened to kill herself by typing a bathrobe around her neck and again threatening to end her life when being forced to return to her mother’s care in July 2021. H. also reported that she had engaged in self-injurious behaviour namely cutting herself with a kitchen knife. Ms. A. and Mr. M. attempted to attribute these cut marks to H.’s Bengal cat, an assertion that I reject.

[118] Dr. Khattak stated that H. “continues to present with marked distress that is out of proportion to the severity of intensity of the stressor (parental separation) resulting in significant impairment in social and academic functioning consistent with Adjustment Disorder”. This report was issued several months after H. had cut off contact with Mr. I.

[119] Dr. Khattak made a series of recommendations for H. including a strong recommendation for a psycho-educational assessment and a plan for therapy.

[120] R. is almost 14 years old. He is in Grade 8 at Public School which is a 20-minute walk from his mother’s home.

[121] R. does not appear to have issues in school.

[122] R. has a number of friends in the neighbourhood and at school. He enjoys video gaming, four wheeling, skateboarding, and playing soccer with his friends. He also plays the guitar and drums.

[123] R. is not identified as having any significant mental health challenges.

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

[124] The children had a positive relationship with both of their parents for many years since their parents separated. This was confirmed by Theresa Ducey, the clinician who prepared the s. 112 report, in January 2015. It was confirmed again by Naomi Singh, who prepared a Voice of the Child report, dated September 10, 2018. It is a testament to the resilience of these children that until August 2021 they were able to navigate the conflict between their parents.

[125] The children historically spoke warmly of their mother and were happy living in her home. The children’s views and preferences prior to the summer of 2021 were to live primarily with their mother.

[126] There was no report or pleading that suggested that the children did not want to spend parenting time with Mr. I. prior to the summer of 2021. The children historically enjoyed spending time with Mr. I. The I. family went on camping trips and other outings together. Mr. I. and R. share a love of RC cars and they would go to the park together to race the cars.

[127] The children consistently said that they wanted to have the same parenting time with their father even though they were both aware that their father wanted more time with them.

[128] In the summer of 2021, there was a shift. Ms. A. and Mr. M. both noted that the children became more withdrawn and oppositional. They, naturally, both blamed Mr. I. and Ms. B. However, Dr. Khattak’s report suggests at least with respect to H. that she has been feeling more depressed since the COVID-19 pandemic began.

[129] H. and R. reported a number of negative issues with their mother’s care to third parties such as the Society worker, Matthew Sweet. Since the children returned to Ms. A.’s care, they do not report any concerns with their mother and their focus is on issues with Mr. I. H. now says that since her father has been “out of the picture” there is no further conflict with her mother.

[130] The children also had a warm relationship with Ms. B. at least according to Ms. B. and Mr. I. In the VOC report, H. told Naomi Singh that she was “not sure” about Ms. B., but she really liked her girls, G. and E. R. told Naomi Singh that Ms. B. was nice to them, but he felt she did this in an attempt to convince them to live there. In this most recent OCL engagement, R. told Ms. Bleau that Ms. B. treated him nicely but that it was a “passive relationship with little interaction”.

[131] H. and R. both expressed concerns about Ms. B.’s treatment of her own children. They observed that Ms. B. “kicked her daughter E. out of the house” at age 16. It appears that H. may also have listened to a disturbing audio recording made by G. in which Ms. B. can be heard repeatedly screaming and using profanities simply because G. failed to wish Mr. I. “Happy Father’s Day”. Mr. I. was in the car at the time.

[132] Ms. B.’s daughter, G., spent six days at Lakeridge Health in March 2020 for a suicide attempt.

[133] H. and R. appeared to remain somewhat wary of Ms. B.

[134] When H. decided to cut off her relationship with her father and Ms. B., Ms. B. contacted H. by text. The messages of which there were many over the course of a few hours started off casual and positive, reassuring H. that no one was upset about her decision. When H. did not respond, Ms. B.’s tone changed. The following is a sample of the text messages that started on August 19, 2021:

• 7:13 a.m.: “you don’t get to respect your dad like that. You are treating him exactly how your mom treats him. And we’re not going to put up that…”

• 12:40 p.m.: “You feel manipulated by your dad??! You are UNBELIEVABLE. You are a good liar. Just like your mother. So your Dad MADE you say all those things about your mom??? You are unreal. I always thought you were such a kind and sweet person. Guess the truth comes out eventually. I cannot believe you did that to your dad. I hope you are happy….if anyone is manipulative, it’s you…..You use people to get what you want then treat them like garbage. Very nice person you’ve grown into, H..”

• 8:58 p.m.: “You don’t even have the guts to read your dads messages and tell him how you feel. You’re a coward. And a liar.”

[135] The texts went on and on in the same vein over several days with Ms. B. repeatedly berating H. for not speaking to her father. Ms. B. then sent another text on August 28, 2021, saying that she is sorry that H. is “being put in the middle” and that she misses her.

[136] H. had only been released for Lakeridge Health mental unit a few weeks earlier.

[137] Mr. I. has tried to integrate Ms. B. into the lives of the children. He sought to change the parenting schedule with Ms. A. such that it aligned with Ms. B.’s parenting schedule. He and Ms. B. enrolled E. and G. in the same school that H. and R. were attending even though they were not in the catchment area. Ms. A. objected and tried to have the school reverse its decision, but the school declined. Ms. B. started to volunteer at the school.

[138] Ms. B. also put herself forward in terms of parenting H. and R. She enrolled them in swimming lessons even though this led to a dispute with Ms. A. who could not then enroll the children on her time. On one occasion, Ms. B. called the Society about Ms. A.’s care of the children without Mr. I.’s knowledge.

[139] One can view Ms. B.’s efforts in a positive light: that she sought to assume the role of loving stepmother. However, I have some sympathy for Ms. A.’s perspective that Ms. B. might have deliberately overstepped the line knowing that this would irritate Ms. A. The children also appear to have had reservations about Ms. B. and her motivations.

[140] H. and R. got along well with G. and E. H. and G. were particularly good friends. After the children returned to Ms. A.’s care in July 2021, H. has had little or nothing to do with G. even though they continue to attend the same school. H. was not able to articulate why the rift with her father extended to G.

[141] H. and R. reported having a good relationship with Mr. M. and they liked his children, W.M. and H.M., even though they were not around a lot.

[142] Mr. M. described doing some activities with H. and R. but generally sounded more hands off in terms of active parenting. He appeared unaware of some significant issues in their lives and confirmed that for the most part he left their parenting to Ms. A. During an earlier investigation by the Society, Mr. M. told the worker that he had not assumed a parenting role for H. and R.

[143] The children now have no relationship with the extended paternal family and indicated that they did not feel a need to pursue that relationship.

(iii) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[144] Neither parent was able to say anything positive about the other. Each blames the other for the conflict, for any issues that the children might have had in the past and for the current rift between Mr. I. and the children.

[145] Each parent’s partner supports him or her wholeheartedly and blames the “other side” for everything that has happened.

[146] Ms. A. has historically accepted that Mr. I. should have a relationship with the children, and until August 2021, she did not take the position that his parenting time should be significantly reduced if at all.

[147] Mr. I. has also supported Ms. A. having a relationship with the children despite many of his criticisms of her care. When the children opted to stay with him in the summer of 2021, he made genuine efforts to encourage the children to communicate with and see their mother.

[148] Ms. A. is now unwilling to support Mr. I.’s relationship with the children. Her position is that the children do not want to see their father and they should be supported in that choice. For the children to change their mind, at least according to her, they would need an apology from Mr. I., and he would need to attend to his mental and emotional needs before he should see the children.

[149] Ms. A. and Mr. M. both admitted that they do nothing to encourage the children to see their father. There are no consequences for the children for failing to attend for parenting time or refusing to communicate with their father. Mr. M. went as far as to blame Mr. I. for not continuing to show up at the appointed parenting time.

[150] Ms. A. frustrated efforts to engage the children in reunification therapy. The court made an order for family therapy. Ms. A. took the children for the intake with Gary Brooks but also raised various concerns about Mr. Brooks, including that he was too closely aligned with Mr. Dutka. Ms. A. did not bring the children back for further sessions.

[151] Ms. A. did not tell the children that Mr. I. had Christmas gifts for them in either 2021 or 2022. It was not until I suggested that Mr. I. could bring the gifts over to the children one evening after court was finished, that Ms. A. facilitated this. R. had a brief meeting with his father that went reasonably well.

[152] Ms. A. made it clear that she needs to cut Mr. I. out of her life for her own survival. Mr. M., who blames Mr. I. for the conflict in his home, prefers the current status quo. It is not stretch to assume that from the perspective of Ms. A. because she is now “done” with Mr. I. so should the children be.

[153] Mr. I. maintains that the children have been alienated from him by Ms. A. Ms. A.’s could be construed as alienating behaviour. However, as I will discuss further below, the children’s circumstances are much more complex and not simply due to parental alienation.

(iv) the history of care of the child

[154] Mr. I. has many positive parenting qualities, even if Ms. A. could not name one. He previously had a warm, close and loving relationship with the children. He enjoys doing activities with the children. The children until the most recent break confirmed this.

[155] Ms. A. also has many positive parenting qualities, much as Mr. I. struggled to acknowledge them. Ms. A. was somewhat less descriptive of her day-to-day activities with the children but this in no way suggests that they do not enjoy family time together. Ms. A. is protective of the children. She is particularly sensitive to H. and her self-esteem.

[156] Ms. A. has not, however, been proactive in terms of providing professional supports for the children particularly H. Ms. A.’s failure or refusal to follow through has been the source of intense conflict and numerous court orders.

[157] In her report dated January 5, 2015, the OCL clinician, Theresa Ducey made a series of recommendations to the parties including that the children receive therapy to assist them in processing their parents’ separation and associated conflict.

[158] Mr. I. attempted to implement those recommendations immediately.

[159] Ms. A. initially said that she thought the children were too young for therapy. Later she told Mr. I.: “the kids are getting the support that I can afford especially considering you flat out refuse to provide any kind of financial support for your children”. Although Mr. I. did not voluntarily increase his child support payments until recently, he was paying monthly child support consistently based on the original order.

[160] Mr. I. continued to press.

[161] Ms. A. then stated on July 9, 2015, that both children were in fact enrolled in counselling. When Mr. I. asked for the counsellor’s name and contact information, Ms. A. deflected stating:

I will provide you with any update you require, but keep in mind that they have a court document that indicates I have sole custody. It would probably be beneficial for you to seek some councilling (sic) of your own to deal with your grief and to better manage situations and outcomes and to try and not impact the children with your person situations.

[162] No name was ever forthcoming.

[163] Ms. A. took H. to a single session with a therapist at a walk-in clinic on October 8, 2015. The therapist noted that the plan was for Ms. A. to proceed with her own counselling.

[164] The McLeod Final Order included the following provisions taken from the OCL clinician’s recommendations:

The Respondent shall ensure that both children engage with service providers based on any identified special needs and the Respondent is encouraged to follow all professional recommendations.
For the emotional health and well-being of the children, the Respondent is to ensure the children attend counselling for the children dealing with parent’s separation and divorce.
The Applicant and the Respondent are encouraged to participate in counselling that focuses on the negative effects of their poor communication on the children.

[165] Ms. A. did nothing further to arrange for therapy for the children.

[166] Less than two years later, both parties initiated Motions to Change. Mr. I. withdrew his. Ms. A.’s Motion to Change was settled, and the Fryer Final Order confirmed that all parenting terms of the McLeod Final Order remained in place. Mr. I. again consented to Ms. A. having sole decision-making in exchange for Ms. A. consenting to an order for therapy for the children.

[167] Ms. A. does not appear to have taken any steps to arrange for therapy for the children until February 2020 when she arranged for Amanda Hamer to see the children. Ms. Hamer is a Registered Psychotherapist with 19 years’ experience working with children with mental health issues including at Frontenac Youth Services. Both parents attended for the first session, but Ms. A. asked for Mr. I. not to be present, and Ms. A. gave Ms. Hamer most of the background information about the family.

[168] There were no further appointments due to the intervening COVID-19 pandemic.

[169] Mr. I. continued to express concerns about what he observed with H.’s mental health. In May 2020, he reported to Ms. A. that H. had been coming to his home since January crying about what he says were incidents at Ms. A.’s home that were causing her anxiety and stress. Ms. A. and Mr. M. also noted a change in the behaviour of both children that they again blamed on Mr. I.

[170] The Society became involved and interviewed the children in October 2020. H. advised that she had feelings of suicide about a year prior. The Society recommended that the children get counselling and Ms. A. advised she would do that.

[171] The children then had a number of virtual sessions with Ms. Hamer. H. had an appointment set for December 2020, but Ms. A. advised that H. did not want to attend. The children have not seen Ms. Hamer since, nor does it appear that Ms. A. arranged for another therapist.

[172] H. was referred to Dr. Khattak by her family doctor, Dr. Nagel following her discharge from the mental health unit at Lakeridge Health. In his report following assessments of H. on August 16, 2021, and October 18, 2021, Dr. Khattak made a series of recommendations that included a referral to the Ontario Shores Adolescent Program and for Cognitive Behavioural Therapy.

[173] On December 16, 2021, Nicholson J. considered Ms. A.’s motion to formally suspend Mr. I.’s parenting time. He declined to grant that relief but ordered the parties to immediately comply with all recommendations made by Dr. Khattak in his report.

[174] The letter from Ontario Shores, dated February 1, 2022, states that H. “is participating in our Cognitive Behavioural Therapy (CBT) program which requires full commitment and attendance to all individual sessions for a total of 16-20 weeks”. Ms. A. stated that H. started CBT as soon as the referral was made, she saw someone for a month or two for virtual sessions until December 2022, but then wanted to take a break for a bit. Ms. A. also said that H. completed CBT therapy in 2022 which would seem inconsistent with H. taking a break toward the end of the same year. Given this highly contentious issue, and its importance in terms of H.’s best interests, I would have expected Ms. A. to produce something from H.’s therapist confirming the number of sessions and/or confirmation that the program had been completed. I draw an adverse inference from her failure to do so.

[175] One would have that thought that H.’s admission to the mental health unit for five days in July 2021 might have been a wake-up call for both parents about the impact their conflict was having on the children. In Ms. A.’s case, I would have thought she might finally recognize that H. needed therapeutic support. Even if, as she believed, Mr. I. and Ms. B. brought the whole thing about, the fact was that the psychiatrists at the hospital and the Society workers were gravely concerned about H.’s mental health. Yet, Ms. A.’s commitment to therapy for H. remained minimal at best.

[176] Ms. A. was similarly dilatory in attending to H.’s educational needs.

[177] The school had first referred H. to a Dr. Styles in November 2013 to address “learning problems with attentional concerns”. H. missed her appointment on April 3, 2014. A second referral was made on March 24, 2015, for an appointment on May 14, 2015. H. missed that appointment. A charge of $100 was levied for each missed appointment.

[178] In cross-examination by Mr. Dutka, Ms. A. initially professed not to know who Dr. Styles was. When asked by Mr. I. about the appointments, she blamed him for H.’s failure to attend, saying that Mr. I. did not give her enough lead time, did not check with her and did not take her to the appointments himself.

[179] Ms. A. told Mr. I. and the school that H. had seen a neurologist who diagnosed her with mild dyslexia, but she would not provide a name.

[180] This issue became the subject of a motion wherein Nicholson J., in his endorsement dated April 5, 2018, ordered Ms. A. to provide (a) evidence of any diagnoses for either child as well as the name and contact information for any doctor either child has consulted with to Mr. I. within 30 days. Nicholson J. also ordered:

Both parties will cooperate fully in having H. referred to any specialist to whom the [children’s family doctor] recommends for any further [consultations] or therapy and both parties will be able to speak to [Family Doctor] about this. [emphasis in the original]

[181] In Ms. A.’s e-mail sent May 5, 2018 to Mr. I., purportedly in compliance with this order, after much narrative about financial issues, she states: “With respect to the issue describing H. I. born June 20th, 2007, there are no undisclosed health issues that have not been communicated to Mr. I.. Therefore, there is no additional information to present to Mr. I. at this time.”

[182] Ms. A. never did provide the name of the neurologist who had allegedly seen and diagnosed H.

[183] On August 20, 2018, five years after the original referral, Nicholson J. ordered the parties to cooperate in setting up appointments with Dr. Styles for H. and to ensure that she was taken to all appointments.

[184] Nothing happened.

[185] An Academic Assessment was prepared for H. in September 2018 when she was in Grade 6. The assessor found that H. was functioning at a Grade 3 level and that she scored well below average in most areas. H. had been identified as having a Learning Disability in Grade 2.

[186] H. told Naomi Singh during the VOC engagement in September 2018 that she was worried that she had a learning issue and wanted it addressed by a medical professional.

[187] Ms. A. who maintained sole custody of the children, took no further steps.

[188] It should be noted that despite this history, Ms. I. again consented to the Fryer Final Order that Ms. A. retain sole custody of the children and that she obtain therapeutic supports for the children.

[189] On March 16, 2021, Wendy L. wrote proposing a Teams meeting to discuss H.’s placement needs for high school next year. The e-mail confirmed that H. was currently working at a Grade 3 level in Reading and Math and that she might need an alternate placement. That same day, Ms. A. responded saying that H. would be attending a private school for Grade 9. Mr. I. was not copied on the e-mail but was copied on the reply from Ms. L. cancelling the proposed meeting.

[190] Ms. A. was proposing to enrol H. in College. Her inquiries of this private school appear to have been made just prior to the school’s request to discuss H.’s placement as their letter to her is dated March 12, 2021. Mr. I. raised numerous objections to the private school including that H. did not want to attend that school, something H. confirmed when interviewed by the school. It became clear that College would not be able to meet H.’s unique learning needs to the same degree as the public school.

[191] There did not appear to be any discussion as to how either of these parties who had little, or no funds, would be able to pay for private education for H.

[192] It was only after Mr. I. started this most recent Motion to Change on March 8, 2021, that Ms. A. took any concrete steps to address H.’s identified educational issues.

[193] A further IEP was prepared for H. dated October 12, 2021, that noted that H. had needs in most academic areas; her strengths were noted as peer relationships and artistic skills. The IEP outlined a variety of supports that H. would benefit from.

[194] Dr. Khattak had also strongly recommended that H. have a psycho-educational assessment.

[195] Ms. A. still did not take any meaningful steps to move this process forward leading to Justice Nicholson making a specific order on December 16, 2021. Although Nicholson J.’s order refers to the parties’ taking steps, Ms. A. had sole custody and it was her primary responsibility to initiate the process.

[196] On February 1, 2022, Mr. I. wrote to Ms. A.’s lawyer advising that he had been contacted by Helen L., Head of Special Education Program at H.’s school about the lack of an updated psycho-educational assessment. Ms. A.’s lawyer replied that her client had just spoken to Ms. L. and the psycho-educational assessment would start the coming Spring. Ms. A’s lawyer also stated that: “My client (and apparently Ms. L.) dispute the narrative you describe below and my client asks you to stop involving the children’s teachers in this conflict. H. is doing well in school so far….”

[197] Ms. A. stated that prior to this e-mail exchange, she did not know who Wendy L. was. Ms. A. was critical of Mr. I. for providing Dr. Khattak’s report to Ms. L. as it might be embarrassing for H.

[198] Ms. A. has since initiated a psycho-educational assessment through Integrate Health Services. The parties could not agree as to how the process should be funded. Mr. I. arranged for his 50% share. Ms. A. made a reasonable proposal that he also pay her 50% share for credit against his retroactive child support obligations, but he refused to do that. To this extent, Mr. I. bears some share of the responsibility for these more recent delays.

[199] There appear to be number of reasons why Ms. A. has failed to follow through on the children’s therapeutic and educational needs.

[200] Ms. A. does not really believe in the benefits of therapy. Ms. A., Mr. M. and Mr. W. all referred to therapy as a form of punishment for the children.

[201] With respect to the educational assessment, Ms. A. is concerned that going through this process could harm H.’s self-esteem. She did not want to “put too much” on H. She did not seem to consider that H.’s self-esteem could suffer if she continues to struggle in school and fall further behind her peers.

[202] Ms. A.’s refusal to facilitate therapy also has much to do with the fact that she thinks Mr. I. will take advantage of the therapeutic process to advance his master plan for primary parenting the children. Even when H. was admitted to the hospital, Ms. A. said that she did not think hospital knew what was going on between H.’s parents and that Mr. I. was manipulating the child. Ms. A. did not appear to even consider that the specialists at the hospital might have identified an issue or that H.’s mental health issues might be because of the conflict between her parents, but still needed to be addressed and not just swept under the rug.

[203] Ms. A.’s black and white thinking about Mr. I. has blinded her to some of H.’s genuine and serious therapeutic needs.

[204] Ms. A. is supported in her views by Mr. M. who at present is financially supporting her. When asked by Mr. I. in cross-examination about therapy for the children, Mr. M. responded: “I have had my fill of therapy, therapy, therapy – they just want to be left alone – they did not do anything wrong – therapy is not the solution all the time for everything”. Mr. M. did not think there was anything wrong with H., he was unaware that she had a learning disability and, in fact, thought that Dr. Khattak had expressly stated that she did not have a learning disability. Mr. M. was also unaware that a psycho-educational assessment had even been recommended for H.

[205] Ms. A. stated, when cross-examined by Mr. Dutka about her failure to comply with the court orders for therapy that “she thought she could just be a parent and decide”. I found this statement totally lacking in credibility given Mr. I.’s incessant attempts to enforce the court orders for the past seven years and the court’s response to same. Ms. A. knew full well what she was required to do and, for her own reasons set out above, simply did not follow through.

[206] Ms. A.’s failure to obtain therapy for H. in a timely way is a real concern in of itself. While Ms. A. describes H. as doing well now in terms of her mental health and education, I am concerned that, even if true, things were very different not too long ago. H. has been deprived of the tools to help her weather future crises and to excel to the best of her capabilities in school as recommended by numerous professionals in the past.

[207] Ms. A.’s approach to the therapy issue has also contributed to considerable conflict between the parties. She consented to two final orders that required her to obtain therapy for the children. She knew that this issue was very important for Mr. I. She then simply opted not to follow the orders and when taken to task for it, she obfuscated and deflected.

[208] Mr. I. is not blameless in all of this. He has been an active participant in the conflict to which the children have been exposed and which can only have contributed to H.’s mental health issues.

[209] Mr. I. also consented to final orders and then immediately started working to undermine them. He repeatedly asked Ms. A. for extended parenting time. When she referred him back to the court order that they had recently consented to, he would continue to badger her refusing to take no for an answer.

[210] Even prior to the rift, the children said a number of times that they would prefer that their father not engage them in emotional discussions about more parenting time. R. stated that there were times when they came back to the house his father would cry and sit them down for 20 minutes to try to talk to them about living with him. R. found it hard to handle his father’s emotional affect. More recently, R. stated that his father always wanted to talk to him and H. about which parent they wanted to live with and that he was “relentlessly trying to manipulate him and H.” into staying at his house rather than “trying to be a dad”.

[211] Mr. I.’s attempts to effect changes to the parenting schedule before the ink was even dry on the final orders led to conflict and instability

[212] While I find that Mr. I. was genuinely concerned about his children’s mental health and their educational needs, given his approach to the parenting issues in general, I think it likely that he also hoped that through the therapeutic process he might achieve his goal of more parenting time.

[213] Around the time that Ms. A. was seeking to delay a trial of this matter, she leveled some fresh allegations relating to Mr. I.’s care of the children in relation to the history of his parenting.

[214] Ms. A.’s lawyer wrote an e-mail to Mr. Dutka and Ms. Bleau on October 20, 2022, alleging that H. had told her mother about having been “violated” by Mr. I. when she was younger. Ms. A. said that H. “recovered through therapy sessions”. There was no evidence of H.’s therapist having reported this to the Society.

[215] This was the first time that an allegation of this kind had ever been raised even though H. had participated in two earlier OCL interventions and had been specifically asked about and denied sexual abuse when interviewed by the Society on several prior occasions. Mr. Dutka and Ms. Bleau interviewed H. again and found no reason to contact the Society.

[216] Ms. A. blamed her former lawyer for the timing, saying she had wanted these allegations dealt with a long time ago, implying that her lawyer had not put them forward as instructed. Ms. A. could not explain why she had not raised them with Mr. Dutka and Ms. Bleau earlier.

[217] Around this same time, Mr. W. had been accused of being inappropriate with one of his daughters when she was younger, and he had shared his concerns with Mr. M. and Ms. A.

[218] I found Ms. A.’s evidence on this topic lacking in credibility. Ultimately, to her credit, Ms. A. acknowledged that Mr. I. had not done anything of a sexual nature to H.

[219] Mr. Dutka and Ms. Bleau were also called upon to do a follow up investigation regarding recent allegations by the children that Mr. I. and Ms. B. drove with them while impaired. The concerns had not been raised before despite numerous police attendances, Society investigations and OCL engagements. The court orders do not contain provisions with respect to alcohol or marijuana use.

[220] Mr. W. admitted that he had made this allegation in relation to Mr. I. and Ms. B. in one of his earlier court cases.

[221] Mr. I. stated that after he was convicted of driving while impaired in 2001, he stopped drinking for the most part. Mr. I. has smoked marijuana for 20 years something the children are aware of. He and Ms. B. take turns acting as designated driver; this was confirmed by H. Ms. Bleau felt that this was “tempest in a teapot”.

[222] The circumstances surrounding these recent disclosures by the children make them highly suspect. I do not find that there are concerns about Mr. I.’s care of the children due to abuse or use of marijuana or alcohol.

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

[223] The children’s views and preferences were expressed primarily through their lawyer Mr. Dutka and his clinician Ms. Bleau. Mr. Dutka and Ms. Bleau only met the children while in the care of their mother as they refused to see Mr. I.

[224] The court also received some evidence about the children’s views and preferences through notes from the Society and the hospital.

[225] Each of the parents spoke about the children’s views and preferences, but I put significantly less weight on this evidence for the reasons outlined above.

[226] In a recent decision in J.N. v. C.G., 2023 ONCA 77, the Court of Appeal for Ontario set out the well settled factors to consider when determining the weight to accord to the children’s views and preferences per Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42:

whether the parents are able to provide adequate care
how clear and unambivalent the wishes are
how informed the expression is
the age of the child
the child’s maturity level
the strength of the wish
how long they have expressed their preference
the practicalities of the situation
parental influence
overall context; and
the circumstances of the preference from the child’s point of view.

[227] H. and R.’s views and preferences have remained relatively static until the more recent rift. They consistently stated that they wanted to live primarily with their mother and have the same parenting time with their father. The children also said that they wished that their parents could be nicer to each other.

[228] The children did not have anything bad to say about either parent until the summer of 2021. At that time, both children expressed to Matthew Sweet that they found it difficult living with their mother.

[229] The children’s views and preferences as it relates to their father are very different now.

a. H.

[230] H. states that she has no need to see her father, Ms. B. or any other member of the paternal family.

[231] H. did not express any anxiety or fear about the possibility of seeing her father. She stated “it wouldn’t be terrible”, but that she would probably ignore him as she did not want to talk to him.

[232] H. reported that now that her father is “out of the picture”, there is no conflict with her mother.

[233] H. did not see the need for therapy of any kind, even if the focus was on simply repairing her relationship with paternal family members.

[234] Mr. Dutka and Ms. Bleau were unable to say whether H.’s views and preferences were independent.

[235] Ms. Bleau indicated that H. had some difficulty communicating, she has trouble getting the full story out. A question was raised as to whether H. had capacity. In a report dated February 25, 2022, requested by Ms. A., Dr. Khattak opined that she did. However, Dr. Khattak also stated in his earlier report that H.’s intellectual deficits “may help explain the difficulty H. has experienced with the parental separation as she may be easily influenced by others”. Linda Bleau suggested that H. could be a child who is going to “swing back and forth between her parents”.

b. R.

[236] R. confirmed that his earlier positive comments about his father were accurate but that he did not want to see his father anymore. If his father showed up, he would speak with him and that it would probably be OK. He would go for visits with his father if “forced to”.

[237] R. confirmed that before the summer of 2021, he and his father got along well. However, he advised Mr. Dutka that since he stopped seeing Mr. I., he “now realized that he had an ‘abusive relationship’” with him. He felt that his father was not a good influence and had unusual beliefs.

[238] R. did not want to attend for therapy. However, he stated that if forced to go to therapy, he would find it less objectionable if the goal was to navigate contact, rather than to live with his father.

[239] Ms. Bleau described the children’s views as clear, strong and consistent. However, the children were unable to adequately explain the reasoning behind their sudden rejection of their father after many years of having a positive relationship with them.

[240] I put some weight on the children’s views and preferences.

[241] The children’s wishes are somewhat informed by the “toxic sea”, to borrow Ms. Bleau’s phrase, that they have been swimming in for almost their entire life. In another apt metaphor, Ms. Bleau referred to the children as balancing on the knife’s edge for many years and finally deciding to jump off. It is not unreasonable for these children to conclude that their parents are not going to change (the court also believes this is unlikely) and the only way they can buy a measure of peace of peace for themselves is by picking a side.

[242] I put less weight on the children’s assertions that they have arrived at their decision not to see their father because they suddenly realized that Mr. I. had been manipulating and abusing them. This is a narrative that they have borrowed from their mother, whether directly or indirectly. Similarly, the children had earlier stated that they would like to attend for therapy, now they are opposed in a way that is consistent with their mother’s views.

[243] H. is going to be 16 years old in a few months. Although her intellectual issues may have some impact on her maturity, her views and preferences should be afforded significant consideration.

[244] R. is going to be 14 years old very shortly and the same is true for him.

(vi) any plans for the child’s care;

[245] Mr. I. proposes that the children would both engage in a course of reunification therapy with him with a view to returning to a normalized relationship, including a possible change in primary residence. He seeks orders for sole decision-making to ensure that the children receive appropriate therapeutic supports.

[246] Ms. A. proposes that she retain sole decision-making for the children. Mr. I.’s right to receive information from and participate with professionals involved with the children shall be terminated. The children would see Mr. I. per their wishes.

[247] The Children’s Lawyer suggests that a change in residency would not be in the children’s best interests. The Children’s Lawyer also submits that giving Mr. I. sole decision making even in certain areas would be counterproductive.

[248] I have addressed the respective plans of care in my summary below.

(vii) 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;

[249] Ms. A. is capable of continuing to care for the children’s physical needs. I have no doubt that she is a loving mother who is also able to care for the children’s emotional needs in most respects.

[250] Mr. I. is also capable of caring for the children’s physical needs. He too loves the children and is able to care for their emotional needs in most respects. Mr. I. has struggled to keep his emotions in check around the children and this has made them uncomfortable.

[251] I would have confidence that Mr. I. would obtain the necessary therapeutic supports for the children. The same is not true for Ms. A.

[252] I have little confidence that the parties will be able to shield the children from conflict in the future. To their credit, Mr. I. and Ms. B. have engaged in therapy with Amanda Hamer, but this did not necessarily translate into the kind of self-reflection needed to overcome more than a decade of entrenched conflict. Ms. A. exhibited little insight into her role in the conflict or how it could be mitigated in the future except by cutting Mr. I. out of her life and the lives of the children. In this respect the children’s need to be supported in having a safe, warm and loving relationship with each parent is not being met by either Mr. I. or Ms. A.

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

[253] I have even less confidence in the parties’ ability to communicate or cooperate on any matters, including those affecting the children.

[254] All of the significant players in the lives of the children, Mr. I., Ms. B., Ms. A. and Mr. M., have a tendency to black and white thinking. They operate on limited information, wilfully fail to fact-check and immediately assume the worst in accordance with their fixed narrative about the other camp.

[255] The parties are frequently rude, critical, and denigrating in their communication. Mr. I. has referred to Ms. A. as “c___tface”. He called Mr. M. “asshat” and when admonished by Mr. Dutka told the latter to “stay in his lane” and not take sides. Mr. I. has communicated with Mr. W. in a denigrating fashion, referring to him as a “weak ass man” among other things.

[256] Ms. A. used a highly offensive racial slur when she met Ms. B. for the first time.

[257] Mr. I. and Ms. A. each believes the other has undiagnosed mental illness and they do not hesitate to share their beliefs with others.

[258] The parties are often over-sensitive and petty in their dealings with each other and with third parties working with their family. Mr. I. objected to Mr. Dutka putting Ms. A.’s name first in correspondence. He took offence when Ms. Bleau did not ring off her correspondence with him wishing him “Merry Christmas” as she had done with Ms. A. Ms. A. objected to having her name on the same document as Mr. I.

[259] The parties do not hesitate to involve third parties in their conflict and to blame others. Mr. W. admitted to collaborating with Ms. A. Helen L., the SERT at H.’s school, was caught in the middle of a dispute between Mr. I., Ms. A. and Ms. A.’s lawyer over the psychoeducational assessment. The administrator of swimming lessons for the City of Oshawa was coopted into a heated exchange between Ms. B. and Ms. A. and ultimately told them to produce a court order. Ms. A. escalated to the Family Support Worker’s supervisor at the Society when she was not happy with comments made during the course of an investigation. Ms. A. also lodged a complaint against Ms. Bleau and Mr. Dutka alleging that they were incompetent and biased when they would not support her motion to adjourn the trial; a complaint she later withdrew. Mr. I. blamed the court for the demise of his relationship with his children following a police enforcement order.

[260] Ms. Bleau commented that if she and Mr. Dutka were experiencing that degree of scrutiny and nitpicking from the parties, she wondered what the impact would be on the children. She asked: “If their parents can’t navigate through the mine field, how can [the children] be expected to do so?” Ms. Bleau’s view is that the children are frozen and cannot deal with what to do next.

[261] This longstanding and dysfunctional relationship between the I. and A. camps is a serious concern for the court in crafting a resolution that will meet the best interests of the children.

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

[262] There has been a history of family violence by both parties. Mr. I. was convicted of assaulting Ms. A., and she was convicted of uttering death threats to him. There have been numerous other police calls since.

[263] The police have attended at the M.-A. residence on a number of occasions due to domestic disputes, although it does not appear that the children were present.

[264] The police were contacted at least once in relation to a domestic dispute between Ms. B. and Mr. I.

[265] The children historically did not describe events of violence or abuse in the narrower sense. They described feeling safe with each of their parents.

[266] The parties’ conduct and behaviour toward each other is a form of family violence for which they are equally responsible. Until recently, the children have demonstrated remarkable resilience in the face of this conflict.

[267] The children’s ability to weather further conflict between their parents is a significant factor for the court to consider.

(b) Summary

[268] These children have been caught up the storm caused by their parents for almost their entire life.

[269] The children are well aware of how each their parent feels about the other. I have no doubt that the children have been privy to many conversations in each home wherein their other parent has been denigrated.

[270] The children have had numerous contacts with the police. They have been interviewed by Society workers on several occasions. They have been asked about their views and preferences by OCL clinicians in three separate engagements.

[271] The children clearly love both of their parents. Until the summer of 2021, they navigated between their parents and had a close, warm and loving relationship with both. They also had a reasonably positive relationship for the most part with Ms. B. and M. and their children.

[272] These children have frankly done an amazing job balancing on the knife’s edge for so many years. But they have now made their choice for peace.

[273] That balance could easily have been tipped in Mr. I.’s favour had things transpired differently on August 2, 2021, but they did not.

[274] It is in the children’s best interests for them to have some peace and stability. This is particularly true for H. whose mental health has been fragile. One of the priorities in terms of remedy is to limit the children’s exposure to further conflict.

[275] I have little or no confidence that Mr. I. and Ms. A. are going have their own epiphany following this trial or that they will be able to alter their approach to parenting in any meaningful way. The evidence presented by the parties and their closing submissions illustrate that, neither is any closer to truly appreciating their contribution to their family dysfunction.

[276] I put very little weight on the children’s comments that they suddenly realized that their father was abusive to them or that he has been trying to manipulate them for years. It is very like that this is a narrative that the children have adopted to help them justify their choice not to see their father. I put significant weight on the children’s desire not to get caught between the crosshairs again.

[277] Ms. A. does not support the children having a relationship Mr. I. She could and should do more to assist both children in re-connecting with their father. Children need both parents in their lives. Children also need to see their parents model empathy, forgiveness and flexibility.

[278] At this stage, given the longstanding and chronic nature of the conflict, the lack of insight by both parents and the age of the children, there are practical limits on what orders are in the best interests of the children.

[279] In my view, this is not case of parental alienation, although Ms. A. is engaging in alienating behaviours. The children’s rejection of their father appears more rooted in their need to shield themselves from the unabating conflict between their parents, as their parents were unwilling or unable to do so.

[280] Mr. I. acknowledged during the trial that this case may not result in him having a renewed relationship with the children. Sadly, this may be the case. Mr. I. is a good parent in many ways. I know he misses his children dearly and my guess is that his children also miss him despite their stated position.

[281] It is not in H.’s best interests for the court to make a specific order for parenting time for her. H. is almost 16. Although she has some intellectual challenges, I am not persuaded that her views and preferences should be given less weight. I am also concerned with the stability of H.’s mental health should she forced to attend for visits and be looped back into possible conflict. It is hoped that H. will choose to have a relationship with her father, but that will be for her to decide.

[282] It is essential that H.’s psycho-educational assessment be completed. Ms. A. stated that felt this was important for H.’s future educational success and the court is holding her to that. I am confident that she can require H. to participate in this process.

[283] H. would benefit from therapy to give her the tools to process the conflict to which she has been exposed, her rejection of her father and her most recent allegation of sexual impropriety. However, I am not going to make a specific order that she attend contrary to her wishes. Dr. Khattak stated that he felt that given H.’s age, for therapy to be useful, she needs to buy in and accept it. While she is under her mother’s roof, I think that buy-in will be slow in coming if ever. I deem it more important for this decision to be left to H. rather than potentially exposing her to further conflict between her parents on this topic.

[284] The situation is not the same for R. R. does not have the same challenges as H., and he presents as more resilient. R. is also younger.

[285] R. indicated that he would be prepared to see his father if “forced to”. Although his choice of words is not heartening, I infer that R. would comply.

[286] R. also indicated that, while it would not be his preference, he would attend for therapy and would find it less objectionable if it was for the purpose of navigating contact with his father.

[287] It is in R.’s best interests to participate in reunification therapy with his father and Gary Brooks starting immediately. Ms. A. shall ensure that R. attends as ordered. I will be continuing to closely monitor her compliance with this term. R.’s failure to attend will be deemed a breach of the order by her.

[288] I am going to defer making a final order with respect to specific parenting time for R. until there have been a number of sessions and I have further feedback from Mr. Brooks.

[289] Mr. I. must be guided at all times by Mr. Brooks in terms of the conversation about parenting time. R. was clearly uncomfortable by Mr. I.’s emotional pleas for more time. There can be no repeat of that. Mr. I. must ensure that he is in a good emotional place before attending for a session. It is strongly recommended that Mr. I. continue in therapy with Ms. Hamer.

[290] Mr. Brooks shall regulate who will attend the sessions. While it would be helpful for Ms. A. to participate, I am not going to require that. Mr. Brooks will be given a copy of this judgement and Ms. Bleau’s affidavit filed in the trial so that he has some background information.

[291] I decline to make an order for parenting coordination. The parties did not follow court orders in the past, I think they would be even less likely to follow the directives of a parenting coordinator who has no contempt powers. In any event, neither party appears to have the funds necessary to pay the retainer typically required along with all their other financial obligations.

[292] Ms. A. requested certain other changes to the McLeod Final Order.

[293] Ms. A. asked to delete the clause that gives Mr. I. the right to obtain medical and educational information directly from professionals. It is in H.’s best interests for this variation to be made; H.’s consent would be required for her father to obtain this information in most cases anyway. I decline to make the change as it applies to R. Ms. A.’s track record of providing information to Mr. A. is very poor. I have little confidence that Mr. I. would receive any information about R.’s health or education if left for Ms. A. to volunteer it.

[294] I decline to vary the need for travel consent. Mr. I. has very little information about his children now. He should be made aware if they are travelling outside of Canada. If he unreasonably withholds consent to travel, there will be costs consequences.

[295] At the conclusion of her evidence, Ms. A. stated that she knew the children would fine. I wish I had the same confidence. I have sympathy for Mr. I.’s feeling of frustration and worry for his children. However, he too has actively contributed to this current situation.

[296] Had this case been argued when the children were much younger, a different, more optimistic outcome might have been available.

2. Applicant’s Contempt Motion

[297] Mr. I. is seeking a finding of contempt against Ms. A. on the basis that:

Ms. A. failed to comply with the McLeod Final Order and subsequent orders made by Nicholson J. and Rowsell J. by refusing to facilitate his parenting time with the children from August 17, 2021, to date.
Ms. A. failed to comply with paragraph 5 of McLeod Final Order which required her to ensure both children engage with service providers based on any identified special needs and the Respondent is encouraged to follow all professional recommendations.
Ms. A. failed to comply with paragraph 13 of McLeod Final Order which required her to ensure the children attend counselling for the children dealing with the parent’s separation and divorce.
Ms. A. failed to comply with Nicholson J.’s order dated December 16, 2021, which required both parties to immediately comply with Dr. Khattak’s recommendations set out in his report following his assessments of H. on August 16, 2021 and October 18, 2021.

[298] The jurisdiction to make a contempt order is found in r. 31 of the Family Law Rules, O. Reg 114/99.

[299] In the recent decision of Moncur v. Plante, 2021 ONCA 462, at para. 10 the Court of Appeal for Ontario summarized the general principles applicable to civil contempt:

For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32–35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25–26.
Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey , at paras. 36-37; Chong v. DonnellyOnt. C.A. , 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de PreS.-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. DavidOnt. C.A. , 25 R.F.L. (8th) 144, at paras. 18–19.
When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo , at para. 19; Chong , at para. 11; and Valoris , at para. 41.

[300] I agree with Justice Charney in Perna v.Foss 2015 ONSC 5636, whene he stated: “notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.”

[301] Allegations of contempt cannot be “traded.”: see Weber v. Merritt, 2018 ONSC 7590, at paras. 30-39.

[302] Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: see Godard, at para. 28; Bors v. Bors, 2021 ONCA 513.

[303] I have found that it is now in H.’s best interests for her to determine what, if any, contact and parenting time she wants to have with Mr. I. I have found that it is in R.’s best interests to be required to attend for reunification therapy with Mr. I. as a precursor to him resuming some parenting time, which has yet to be determined by me.

[304] These findings do not mean that the court endorses Ms. A.’s failure to facilitate court ordered parenting time over the past 1 ½ years. Had Ms. A. complied with the orders for parenting time earlier, the children’s rejection of their father might have been nipped in the bud.

[305] I reject the assertion that the children suddenly saw the light in terms of their father on August 2, 2021. Ms. A. has had a significant role to play, as likely has Mr. M.

[306] Ms. A. sought the court’s blessing for her suspension of Mr. I.’s parenting time breach– she did not receive it. On December 16, 2021, Nicholson J. ordered her to immediately reinstate the parenting schedule and he set a new date to monitor compliance. Ms. A. remained in breach.

[307] On January 10, 2022, Nicholson J. again warned Ms. A. that she must comply with the order or face an order for costs or other orders. Ms. A. remained in breach.

[308] Rowsell J. reiterated the importance of “compliance with the current court orders” in his endorsement dated February 3, 2022. Ms. A. remained in breach.

[309] On February 9, 2022, Nicholson J. emphatically reiterated that these past two endorsements would stand. Ms. A. remained in breach.

[310] On March 3, 2022, Nicholson J. dismissed Ms. A.’s motion to vary the current parenting schedule. Ms. A. has remained in breach ever since.

[311] Mr. I. initially tried to follow the order and attended at Ms. A.’s home to pick up the children but said during the trial that he did not want to keep going over there as might be perceived as harassment. Under the circumstances, Mr. I. took the prudent course.

[312] Ms. A., in her evidence, stressed the outrageousness of Mr. I. overholding the children in the summer of 2021 based on what he said was their wishes. She did not appear to recognize the irony of her position that Mr. I. should be sanctioned for his breach when she has been in breach of the order for almost two years.

[313] It is important to note that Ms. A. did not even go through the motions of encouraging the children to attend or suggesting therapy. I find that this is not just because she believes that this is in the children’s best interests, but because it is better for her and Mr. M.; their lives are more peaceful without having to deal with Mr. I.

[314] When Rowsell J. ordered the parties to commence reconciliation therapy with Gary Brooks late last year, Ms. A. attended one session and then refused to participate further. The process failed before it could begin.

[315] I find Ms. A. in contempt of the McLeod Final Order for failing to facilitate parenting time with Mr. I. starting August 17, 2021, up to the commencement of the trial.

[316] This finding in relation to Ms. A.’s persistent breaches of the order for parenting time is necessary. She was already given numerous opportunities to remedy the breach and she has simply thumbed her nose at the court relying on “mother knows best”. There are no other remedies.

[317] I also find that Ms. A. did not comply with the spirit of the order in terms of ensuring that H.’s special educational needs were attended to. To this day, H. still does not have the psychoeducational assessment that was recommended for her many years ago. While I appreciate that Mr. I. has not yet put forward his share of the funds, this was not a pre-condition per the order. Furthermore, the order states that Ms. A. is “encouraged” to follow all professional recommendations; something she clearly did not do. However, this term of the order is not sufficiently clear and unequivocal, such that it could ground a finding of contempt. It is not clear what it means for the children to “engage with” services providers and Ms. A. was not ordered to follow professional recommendations, only encouraged to follow them.

[318] Ms. A. was to ensure that the children attend counselling for children dealing with parent’s separation and divorce. Ms. A. knew or ought to have known that her commitment to therapy for the children was the quid pro quo for Mr. I. ceding sole decision making to her. Ms. A.’s excuse that she thought sole decision-making meant she could decide is not reasonable.

[319] These children would both have benefitted from this therapy. While Ms. A. and Mr. M. may not agree, it was not up to Ms. A. to decide after she consented to the order. Had the children been given the tools through therapy to manage their parents’ incessant conflict, they might not have felt the need to take the drastic step of excommunicating their father and his family.

[320] Ms. A. did little or nothing with respect to arranging therapy per this order until 2020, when she arranged for the children to see Amanda Hamer and even this engagement was relatively short lived. Ms. A. also facilitated some CBT for H. per Dr. Khattak’s recommendations; the scope of this therapy is not clear. While I do not find that Ms. A. complied with the spirit and intention of the order, I decline to find her in contempt of this term.

[321] Ms. A. is also asking for a series of orders against Mr. I. I assume that she expects Mr. I. to comply and failing compliance she expects to be able to turn to the court for assistance. I agree with Mr. I. who stated that the “court cannot hold one party accountable to the court order while allowing the other party to act freely and without consequence”.

[322] The finding of contempt serves a remedial purpose, as Ms. A. must ensure that she follows the orders that that I have made below in substance and in spirit. The finding of contempt is also made in consideration of the best interests of the children namely to ensure that the orders that I have made below will be complied with by both parties.

[323] As the parties are by now aware, having each brought several such motions, the penalties for contempt can include a fine and a period of incarceration. I am going to defer the penalty phase of the contempt finding as I wish to monitor Ms. A.’s ongoing compliance.

3. Support Issues

(a) Retroactive Table Child Support

[324] Ms. A. had been seeking child support to be adjusted retroactive to January 1, 2016, which pre-dated my final order made in 2018. In the Statement of Agreed Facts, she confirmed that her claim was limited to the period from January 1, 2018, to date.

[325] The parties could not even agree on the quantum of retroactive child support owing which is a very basic calculation.

[326] Mr. I. did not file an updated Financial Statement for the trial, contrary to the Family Law Rules. His most recent Financial Statement filed was signed, but not sworn, on March 8, 2022 (date of the document is March 8, 2021, but appears in error as the 2021 Notice of Assessment is attached).

[327] Mr. I. has been with the same employer for many years. His income for the relevant years has been:

2018 - $66,835

2019 - $64,296

2020 - $60,403

2021 - $54,796

2022 - $55,471 (per unsworn Financial Statement)

[328] Justice Scott’s order dated March 5, 2013, remains the operative order in terms of Table child support. Pursuant to paragraphs 5 of that order, the parties were to exchange complete Income Tax Returns and Notices of Assessment by June 1 each year for the purpose of adjusting child support.

[329] Mr. I. did not comply with that order as his Notices of Assessment for 2018 and 2019 were not issued until 2021 and his 2020 Notice of Assessment was not issued until March 31, 2022. This is yet another example of selective compliance with court orders.

[330] Mr. I. paid the same amount of child support ($798/month) each year based on Justice Scott’s 2013 order until last Fall when he adjusted prospective support based on his last year’s income.

[331] Child support should have been adjusted each year upon an exchange of disclosure per the terms of Scott J.’s order and having regard to the principles set out in Colucci v. Colucci, 2021 SCC 24.

[332] Mr. I. did not advise as to why he did not agree with Ms. A.’s retroactive support calculations.

[333] Child support arrears are fixed at $7,489 through to September 2022 per Ms. A.’s calculations.

[334] Commencing September 1, 2022, Mr. I. shall pay child support based on his annual income for 2021 of $54,796 being the Table amount of $836 per month. Child support shall be adjusted prospectively commencing June 1, 2023, based on Mr. I.’s Line 150 income for 2022.

[335] Mr. I. has been on a stress leave for what he described as situational depression and anxiety since July 20, 2022, and receiving a reduced income of $638/week. Ms. A. did not specifically argue that Mr. I.’s income should be imputed to a higher level, nor would I so find. Mr. I. will have the benefit of paying reduced support commencing later this year after he produces his Income Tax Return and Notice of Assessment for 2022.

(b) Special & Extraordinary Expenses

[336] The parties consented to the Fryer Final Order, that states as follows:

The Applicant, J. I. shall expand Section 7 expenses and pay his proportionate share to the Respondent, A. A. for the children; H. I. born [date omitted] and R. I. born [date omitted] to include: orthodontic treatment, post-secondary education and medical and dental expenses.

Mr. I. is to pay his share of these expenses directly to Ms. A. not the service provider.

[337] Ms. A. confirmed that she is now agreeable to the parties sharing special and extraordinary expenses equally on a go forward basis meaning she will be imputed with the same income as Mr. A. and vice versa.

[338] Mr. I. submitted that an income should be imputed to Ms. A. of $85,000 based on her historical earnings. He did not specifically plead this issue. However, Ms. A. was well aware that the claim was being made and she referenced it as a long-standing issue in her closing submissions.

[339] Ms. A.’s actual income was as follows for the years in question:

2022 - $0 (per sworn Financial Statement)

2021 - $38,055

2020 - $43,613

2019 - $1

Unlike Mr. I., Ms. A. appears to have filed her taxes on time each year.

[340] Section 19(1)(a) of the Ontario Child Support Guidelines, O. Reg. 391/97 (“OSCG”) provides that the court can impute an income where a spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

[341] In Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, [2002] O.J. No. 3731 (Ont. C.A.) the court set out a three-part test to consider for imputing income:

Is the party intentionally underemployed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?
If not, what income is appropriately imputed?

[342] The onus is on the party asserting that an income to establish that the other party is intentionally unemployed or under-employed, and that person must also establish an evidentiary foundation for the finding to be made: Homsi v. Zaya, 2009 ONCA 322 at para. 28. Once a prima facie case is made, the onus shifts to the individual seeking to defend the income position that they are taking: see Berta v. Berta, 2015 ONCA 918 at para. 63.

[343] In her 2015 report, Office of the Children’s Lawyer clinician, Teresa Ducey wrote that Ms. A. obtained a B.A. majoring in psychology from York University. In cross-examination by Mr. I. during the trial, Ms. A. denied that she had a university degree and stated that Ms. Ducey got it wrong. I find it difficult to believe that Ms. Ducey would invent such specific facts about Ms. A.’s educational background.

[344] Regardless of her education, Ms. A. has had several reasonably well-paying jobs. Between 2011 and 2014 Ms. A. worked for Broken Hill Properties, a potash mining company in Saskatchewan. Later Ms. A. started work for Ontario Power Generation. She also had her real estate license.

[345] In 2017, Ms. A. earned approximately $80,000 working as a project manager in information technology.

[346] Mr. M. described Ms. A. as a “highly skilled IT/Program Manager”.

[347] Ms. A. did not have a clear explanation, other than the COVID-19 pandemic, as to why her earnings had dropped and why she had earned nothing last year. Ms. A. had earlier advised Mr. I. that she had “retired”. He took this to mean, as did I, that she did not intend to return to work. She tried to assert at trial that she really meant was that she was “retiring from the conversation” with him.

[348] Ms. A. did not assert that she was suffering from a health issue that would impact her ability to work although she found co-parenting with Mr. I. highly stressful.

[349] I find that Ms. A. has been intentionally under-employed for the years 2019-2022. For the purposes of calculating retroactive special and extraordinary expenses, Ms. A. shall be imputed at an income equivalent to Mr. I.’s. This is higher than her actual income, but less than what she was earning historically and in keeping with what she should be capable of earning.

(ii) Post-Secondary Education Expenses

[350] Ms. A. sought to vary the Fryer Final Order to further expand the list of special and extraordinary expenses to be shared to include counselling, sports and activities.

[351] Counselling falls under the umbrella of medical expenses already referenced in the order. There is no material change in circumstances that would warrant including the children’s sports and activities nor was their evidence to support that the children were engaged in activities that would meet the criteria under s. 7(1)(f) of the OCSG

[352] Ms. A. also sought to add further detail to the Fryer Final Order, in terms of the parties’ contributions to the children’s post-secondary education expenses to include tuition, books, laptop, room and board and other school related expenses.

[353] There is a material change in circumstances, in that the means of the parties is different now than when they consented to my order on November 16, 2018. However, that material change would not support an expansion of the parents’ obligations but rather a reduction in them.

[354] Ms. A.’s net worth, according to her most recent Financial Statement, is negative $4,000, not including amounts owed to the orthodontist and dentist. Her assets total $55. She is not currently working. Mr. M. did not suggest that he was planning to assist with any of these payments for the I. children.

[355] Mr. I.’s net worth according to his most recently Financial Statement was $44,600 of which $30,000 is his retirement pension. He does not list any debts on his Financial Statement. This net worth calculation does not include amounts that he owes Ms. A. for retroactive child support and his contribution to various special and extraordinary expenses. His income has been reduced while he has been on short term disability. The court had minimal information about Ms. B.’s finances except that she is working cleaning homes; she also has two children who are nearing post-secondary education.

[356] It is difficult to foresee how either Mr. I. or Ms. A. will have the money to pay for their share of the children’s post-secondary education. It is entirely predictable however that each party is going to blame the other when the money is not forthcoming. If history is an indicator this will lead to further conflict involving the children and yet more court resources being devoted to another needless dispute.

[357] I decline to grant the variation requested by Ms. A. Mr. I did not seek to vary the prior orders with respect to the payment of post-secondary education expenses so I am not prepared to make any variation. However, I emphasize that the parties need to be practical and reasonable with respect to what they can afford to do for their children. It would be prudent to talk to the children early on as to what they can expect in terms of financial help with their education rather than giving them false expectations. It will be very important that the children do not come to blame one parent or the other for what that parent cannot realistically provide.

(iii) Orthodontic Expenses

[358] Ms. A. is seeking to be reimbursed for some expenses paid, and for Mr. I. to pay his proportionate share of outstanding and future expenses.

[359] The topic of the children’s orthodontic expenses was the source of longstanding conflict between the parties. On August 20, 2018, Nicholson J. ordered:

Both parties will co-operate in having the orthodontist David Orthodontists at the Oshawa Centre produce receipts to both parties and comply with whatever [Mr. I.’s] benefit company requires. Davis Orthodontists shall disclose whatever information they have regarding the children to [Mr. I.]. [Mr. I.] is to process the receipts for payments by benefits forthwith and pay 42% of what is not covered” [emphasis added in the original].

[360] The orthodontic issue is a classic illustration of the broken communication between these parties.

[361] Mr. I. refused to contribute to orthodontic expenses, as he said that his name needed to be on the orthodontist’s account. Ms. A. did not believe that Mr. I.’s name needed to be added and she was unwilling to do it possibly because Ms. B. had been contacting the orthodontist and Ms. A. wanted to limit the flow of information. Ms. A. did not request that Mr. I. provide proof from his insurer of this requirement, and Mr. I. did not volunteer proof to resolve the dispute.

[362] Mr. W. acknowledged that Mr. I.’s name needed to be on the account, and it is on the account for his children to be covered by Mr. I.’s policy.

[363] Mr. I. also refused to pay for braces as Ms. A. did not provide him with her 2019 Notice of Assessment to determine proportionate sharing, even though he had not produced his own Notice of Assessment.

[364] Mr. I. should have provided proof from his insurer of the requirement that his name needed be added to the account to process claims. Ms. A. should have added Mr. I.’s name to the children’s account regardless. This petty dispute means that both parties may have to bear an expense that would otherwise have been fully covered.

[365] The parties are equally culpable and shall bear the burden of paying for the uninsured amounts equally.

[366] Mr. I.’s name now appears on the account for East Village Dental Centre. It is not clear when his name was added. Mr. I. advised that he submits expenses to Sun Life and that reimbursement goes directly to the dentist or orthodontist. The summary of dental expenses for both children would support this as they show a series of payments from Sunlife/insurance starting in August 2021. However, it appears that at other times, Mr. I. also received benefits payments directly from the insurer as e-transferred $975.63 to Ms. A. on August 16, 2019, as “ortho benefit refund”.

[367] Ms. A. did pay $5,780 to H.’s Orthodontist between October 18, 2018, and February 20, 2020. Mr. I. shall pay 50% of the amounts incurred by Ms. A. less the payment of $975.63 referred to above: $1,914.37.

[368] The statement from East Village Dental Centre dated October 21, 2022, shows that there is still an amount outstanding of $3,754.74 for both children for the period starting June 8, 2019. While the parties should pay the dentist for services rendered, where Ms. A. has not incurred the expense, Mr. I. will not be ordered to reimburse her until such time as she does this.

(iv) Psychoeducational Assessment – H.

[369] The psychoeducational assessment for H. has been yet another of many bones of contention between the parties.

[370] Integrate Health Services estimated that the cost of the assessment will be $2,950.

[371] Mr. I. at one time borrowed his 50% share of this expense. He would not however agree to Ms. A.’s proposal to pay her share to be offset against what he clearly owed in retroactive child support. In this respect, Mr. I. is equally responsible for the more recent delays in moving the assessment forward.

[372] Mr. I. confirmed at trial that he could still obtain the funds for this assessment.

[373] There was no evidence that anything had been paid toward this process by Ms. A. therefore there is no order for the court to make that she be reimbursed by Mr. I. for his share.

(v) Gary Brooks

[374] Ms. A. already offered to offset the retroactive child support owed to her against the cost of therapy with Gary Brooks.

[375] Mr. I. has some insurance coverage for Mr. Brooks at $500 per insured person.

[376] The ongoing cost of reunification therapy shall be shared by the parties

[377] I have initialized the names of the parties, the children and other family members and I have omitted certain identifying information as I find that publication of that information could cause emotional harm to the children in particular.

V. ORDER

Final Order – Parenting Issues

1 The order of McLeod J. dated November 25, 2015, is varied as follows:

a. Paragraph 2 with respect to H.V.I. only shall be replaced with:

The child, H.V.I. born , shall have contact and parenting time with the Applicant (Father) per her wishes.

b. Paragraph 4 shall be replaced with: the Applicant (Father) shall have access to R.O.I.’s educational and medical records directly from the professionals involved without the Respondent’s verbal or written consent.

c. Paragraph 6: deleted.

d. The holiday parenting schedule set out at paragraphs 7-11 inclusive shall not apply with respect to H.

Subject to a determination of parenting time for R. I. born , each party’s variation request is otherwise dismissed.
The Respondent (Mother) shall immediately contact Integrate Health to commence the process for H.V.I.’s psycho-educational assessment and shall provide the Applicant (Father) with confirmation of same. The Applicant (Father) shall forthwith pay the full fee for the assessment (approximately $2,950) and the Respondent (Mother)’s 50% share shall be credited against amounts owing to her. The Respondent (Mother) shall require H.V.I. to attend and participate as required by Integrate Health. The Respondent (Mother) shall provide the Applicant (Father) with written confirmation that she has complied with this provision, and with bi-weekly updates to confirm that the process of the psycho-educational assessment is on track. The Respondent (Mother) is not required to provide details of the substance of the assessment unless H.V.I. consents; the updates are to evidence that the process is being complied with in a timely fashion.

Temporary Order – Parenting Issues:

The Applicant (Father) and the child, R.O.I. born , shall participate in reunification therapy with Gary Brooks with the initial objective of restoring contact between father and son. The following terms shall apply:

a. Subject to Gary Brooks’ availability, the Applicant (Father) shall have one reunification therapy session with R.O.I. each week for up to two hours on dates to be selected by the Applicant (Father).

b. The sessions shall not be booked on school time but shall otherwise take precedence over other commitments including extra-curricular activities or family functions.

c. The Respondent (Mother) or her designate shall bring R.O.I. to each session. If R.O.I. is unwell, a doctor’s note attesting to this shall be produced by the Respondent (Mother). Other than for illness, R.O.I.’s failure to attend for therapy may be deemed a breach of this order by the Respondent (Mother).

d. The Applicant (Father) shall provide Gary Brooks with a copy of this judgement and the affidavit of Linda Bleau sworn February 10, 2023.

e. The Respondent (Mother) is encouraged to participate in the reunification therapy but is not required to do so.

f. Gary Brooks shall be requested to write a brief report outlining progress for the next court date.

g. The parties shall share the cost of therapy with Gary Brooks equally. The Applicant (Father) shall bear the up-front cost and the Respondent (Mother)’s share shall be deducted from the amounts otherwise owing to her by the Applicant (Father) for retroactive child support.

The Children’s Lawyer shall review the terms of this order with the children.
The Children’s Lawyer is requested to represent the children until such time as the court makes a final order with respect to parenting time for R.O.I.

Contempt

The Respondent (Mother) is found to be in contempt of the Order of McLeod J. dated November 25, 20215 for failing to comply with the parenting schedule from August 17, 2021, to the commencement of trial. The penalty phase of this motion is adjourned to a date to be set at the next event.

Final Order – Financial Issues.

Commencing September 1, 2022, the Applicant (Father) shall pay child support based on his annual income for 2021 of $54,796 for two children being the Table amount of $836 per month with credit to be given for payments made. Child support shall be adjusted prospectively commencing June 1, 2023, based on the Applicant (Father)’s Line 150 income for 2022.
The Applicant (Father) shall pay arrears of Table child support fixed in the amount of $4,837 within 180 days less the Respondent (Mother)’s 50% share of the fee paid to Integrate Health for the psychoeducation assessment and less the Respondent (Mother)’s 50% share of the therapy costs with Gary Brooks.
The Applicant (Father) shall pay the sum of $1,914.37 to the Respondent (Mother) within 180 days as his share of orthodontic fees for H.V.I. incurred to date less the Respondent (Mother)’s 50% share of the therapy costs with Gary Brooks not already offset by the arrears of Table support.
The order of Fryer J. dated November 16, 2018, paragraph 2 is varied to read as follows:

(a) The parties shall share equally the following special and extraordinary expenses for the children based on the Applicant (Father)’s income for 2021 of $54,796 and the Respondent (Mother) being imputed with an equivalent income:

i. Uninsured dental and orthodontic treatments.

ii. Such post-secondary education expenses that may be reasonable having regard to the means of each party and the means of the child and which may require a contribution to the expense from the child including through loans and/or bursaries.

iii. Therapy expenses including, if ordered by the court or by prior agreement of the parties, reunification therapy.

iv. Psycho-educational assessment for the child, H.V.I.

(b) If the Applicant (Father) has insurance coverage for any of the above noted expenses, the following shall apply:

i. The Respondent (Mother) shall take all steps necessary to facilitate processing of insurance claims by the Respondent (Father)’s insurer. In the event of a dispute about what the insurer requires, the Applicant (Father) shall provide supporting documentation forthwith from his insurer.

ii. If the insurer does not pay the service provider directly but rather reimburses the Applicant (Father), the Applicant (Father) shall immediately forward any reimbursement to the Respondent (Mother).

iii. If the Respondent (Mother) fails to take reasonable steps to facilitate processing of claims such that an otherwise qualifying expense will not be covered by the Applicant (Father)’s plan, she shall be solely responsible for that part of the expense that would otherwise have been covered.

(c) The Respondent (Mother) shall bear the upfront cost of all special and extraordinary expenses. She shall provide the Applicant (Father) with proof of the expense and proof of payment. The Applicant (Father) shall reimburse her for his 50% share of the expense within 30 days of receiving the requisite information.

The finding that the Respondent (Mother)’s income is equivalent to that of the Applicant (Father) for the purpose of the sharing of special and extraordinary expenses is subject to variation in the event of a material change in circumstances.
Each party’s claim to vary the order of Fryer J. dated November 16, 2018, is otherwise dismissed.
The trial is adjourned to July 17, 2023, at 9:30 a.m. for a 30-minute attendance for parties to speak to the matter of the progress of reunification therapy between R.O.I. and the Applicant (Father). The matter shall proceed virtually. Each party shall file a 17F confirmation not to exceed three pages outlining the status of R.O.I.’s attendance for therapy with the Applicant (Father). In addition, the Applicant (Father) shall file a report from Gary Brooks in this regard. The court will then set a further date to determine on a final basis, the parenting schedule for R.O.I., the penalty for the Respondent (Mother)’s contempt and costs.
If there are issues regarding compliance with the reunification therapy prior to July 17, 2023, either party may request a brief attendance before me by filing a 14B motion to my attention.

JUSTICE L.E. FRYER