K.K. v M.M, 2023 ONSC 3347

COURT FILE NO.: FS-13-76817-00 DATE: 2023 06 02 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.K. Applicant

• and - M.M. Respondent

Counsel: Brian Ludmer, counsel for the Applicant Aida Pasha, counsel for the Respondent

HEARD: February 13, 14, 15, 16, 17 and April 11 and 12, 2023

P ETERSEN J.

Reasons for Judgment

Overview

Nature of Proceeding

[1] This is a parenting review initiated by the Applicant, K.K.

[2] The parties have two children. The elder child, V.K., is now an adult. She lives with her mother, M.M., and is pursuing post-secondary education full-time. She is estranged from her father, K.K., and has very limited communication with him. V.K. was the subject of previous parenting orders of this Court but, given her current age, she is not the subject of this proceeding.

[3] The younger child, J.K., is 13 years old. He is completing Grade 8 and will be starting high school next fall. He lives principally with his mother, M.M., and sister, V.K., in Toronto. He has video calls with his father, K.K., twice weekly and spends 8 hours in K.K.’s care every Sunday from 10:00 a.m. to 6:00 p.m. K.K. lives in Brampton.

[4] The current parenting schedule has been in effect since January 2022. It is the culmination of a graduated parenting plan that I set out in a Final Order dated April 9, 2021, subject to review at the father’s request. The relevant Order also granted M.M. sole parental decision-making authority with respect to J.K. There were many ancillary orders, including restrictions on the parties’ ability to travel with the children, and an order requiring K.K. to refrain from attending the children’s schools and from being within 200 metres of M.M.’s home, workplace, and any other location that she is known to frequent.

Parties’ Positions

[5] K.K. is seeking Orders for joint parental decision-making authority, for week-about equal parenting of J.K., and for J.K. to attend Castlebrooke Secondary School in Brampton commencing in September 2023. K.K. has offered to pay for an Uber to transport J.K. between his mother’s home in Toronto and the high school in Brampton on alternating weeks. He also asks the court to permit him to travel with J.K. internationally and to modify the terms of the restraining order so that he can attend J.K.’s school and other locations where J.K.’s activities take place.

[6] M.M. asks the court not to lift the restraining order, not to increase the father’s parenting time, and to preserve her exclusive parental decision-making authority, including her decision to enrol J.K. at John Polanyi Collegiate Institute close to her home in Toronto. She also asks the court to permit her to travel with J.K. internationally.

[7] Both parties seek their costs of the review proceeding.

Analytical Framework

[8] This is not a Motion to Change. Consequently, K.K. is not required to demonstrate a material change in circumstances to justify a variation of the existing Order: S.H. v. D.K., 2022 ONSC 1203 (Div. Ct.), at para. 23. Rather, this review proceeding was contemplated by the Order itself. It constitutes a fresh inquiry into J.K.’s current best interests in accordance with s. 16(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[9] Subsection 16(2) of the Divorce Act stipulates that the court must give primary consideration to J.K.’s physical, emotional and psychological safety, security and well-being. In doing so, the court must consider all the factors enumerated in ss. 16(3) and 16(4) of the Divorce Act and must take into account the principle that a child should have as much time with each parent as is consistent with the child’s best interests: Divorce Act, s. 16(6).

[10] The latter principle has traditionally been referred to in the jurisprudence and academic literature as the “maximum contact principle.” However, the Supreme Court of Canada recently criticized that moniker because it incorrectly implies that as much contact with both parents as possible will necessarily be in the best interests of the child. In Barendregt v. Grebliunas, 2022 SCC 22, at para. 135, the Supreme Court held:

It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”. [Emphasis in original.]

[11] The Supreme Court held that the question for a trial judge is not how to best promote the parenting time factor, but rather how to best promote the best interests of the child. The Court stated: “These considerations are not synonymous. Nor are they necessarily mutually reinforcing. Courts should only give effect to the parenting time factor to the extent that it is in the best interests of the child”: Barendregt, at para. 164.

Background

[12] K.K. was J.K.’s primary caregiver (with the assistance of two nannies) from March 2014 to April 2021. K.K. was also V.K.’s primary caregiver from March 2014 to September 2020. There were extended periods of months and years between March 2014 and February 2020 during which both children had no contact with their mother, or only brief supervised parenting time with her. In November 2018, the Court ordered telephone contact, unsupervised weekly visits, and biweekly overnight stays at M.M.’s residence, but K.K. actively and successfully coached the children to refuse to go and to refuse to speak to their mother. Consequently, the November 2018 Order did not take effect until enforcement proceedings resulted in a further Order in February 2020. At that point, M.M. began to have regular, albeit limited, parenting time with the children. In September 2020, V.K. moved to M.M.’s residence, but J.K. continued to reside principally with his father. He visited his mother and sister on weekends.

[13] That was the parenting arrangement in place when the trial commenced on November 30, 2020. The trial was completed on April 8, 2021. Based on the evidence at trial, I concluded that K.K. had engaged in family violence and parental alienation that was harmful to the children. Particulars of K.K.’s conduct and of the harm caused by him are set out in my judgment dated June 1, 2021: K.K. v. M.M., 2021 ONSC 3975.

[14] At the end of the trial, I concluded that J.K. was at risk of further psychological, and possibly also physical, harm if he remained in his father’s care. He needed to be removed immediately from his father’s orbit to escape the crushing pressure placed on him by K.K.’s polarizing conduct and demand for faithful allegiance in the parental conflict. He also needed distance from his father’s toxic influence to re-establish a bond with his mother, who was in the best position to care for him and meet his parenting needs. His best interests necessitated not only that he live principally with his mother and sister, but also that he have no contact with his father for a temporary period. I therefore imposed the following parenting schedule:

a) For ten weeks, K.K. was forbidden to communicate in any way with J.K., except under therapeutic supervision in the context of participating in J.K.’s counseling sessions upon the invitation of J.K.’s therapist;

b) Commencing June 20, 2021, J.K. would have two weekly video calls with K.K. for up to 20 minutes on dates and times to be fixed by M.M.;

c) Commencing August 1, 2021, in addition to the video calls, J.K. would have in-person parenting time with K.K. on Sundays from 10:00 a.m. to 6:00 p.m.; and

d) The parenting schedule could be reviewed after September 30, 2021, upon K.K.’s request.

[15] J.K.’s transition from his father’s primary care to his mother’s primary care was done in the courtroom on April 9, 2021, without notice to either party or the children. K.K. was not permitted to speak to J.K. about the court’s decision before leaving the courthouse. These extraordinary measures were undertaken in J.K.’s best interest, for reasons set out in paragraphs 763-767 of my judgment dated June 1, 2021.

[16] K.K. appealed the Order and immediately sought a stay of the Order pending appeal. The stay application was rejected (K.K. v. M.M., 2021 ONCA 407) and the appeal was ultimately dismissed (K.K. v. M.M., 2022 ONCA 72).

J.K.’s Transition

[17] J.K.’s change of residence and separation from his father constituted a sudden upheaval that came as a shock to him. He was extremely upset about not having a chance to say “goodbye” to his father. He missed K.K. deeply and was unhappy about his new living circumstances.

[18] M.M. took appropriate steps to support him through the transition. She booked an appointment with his social worker, Deborah Connerty, the same day that the court ruling was made. She recognized his need to grieve his separation from his father. She gave him a frame with pictures of him, V.K. and K.K., and told him to hold it tight to his heart so he could feel his father’s love. She reassured him that the weeks would pass quickly and that he would see his father again.

[19] J.K. was attending school remotely at that time due to the COVID-19 pandemic. On April 12, 2021, he told a teacher that M.M. had thrown objects at him. The teacher reported this to the Children’s Aid Society (“CAS”), which conducted an investigation. J.K. retracted the allegation and the CAS closed the file, concluding that further involvement was unwarranted. I infer that J.K. made this false report in an effort to return to his father’s care.

[20] During an evening therapy session on April 13, 2021, J.K. informed Ms. Connerty that he was having suicidal thoughts. Ms. Connerty immediately disclosed this to M.M., who took J.K. to a hospital emergency department that same night. He was seen by a psychiatrist, who determined that he was not actively suicidal. He was diagnosed with an adjustment disorder. M.M. ensured that J.K. had regular (almost daily) sessions with Ms. Connerty for several weeks thereafter. K.K. was not invited by Ms. Connerty to participate in the therapy sessions because he would not agree to her ground rules.

[21] M.M. obtained a leave from her employer and took two months off work to spend time with J.K. She testified that, in the beginning, he had frequent tantrums. He would shove, hit, and kick her. He called her by a nickname, “Mumu”, instead of calling her “Amma,” the Tamil word for “mom”. He was angry and would often stay in his room, refusing to speak to her. She ensured that the family dog stayed with him for company, and she slept near him so she could comfort him when he had nightmares. He gradually began to settle down and started calling her “Amma” after about 6 weeks.

[22] M.M. retained Dr. Susan Walker Kennedy to provide her and J.K. with family reunification therapy, which commenced on June 14, 2021. It progressed slowly in the beginning because J.K. avoided discussing difficult topics.

[23] J.K.’s video calls with K.K. commenced on June 20, 2021. M.M. monitored and recorded the calls without K.K.’s permission. K.K. also recorded the calls. The resumption of communications with K.K. caused a set back in J.K.’s emotional adjustment to his new living circumstances. He resorted to anger toward his mother and withdrew from her again. J.K. also became disengaged from his therapy and refused to participate in sessions with Ms. Connerty for about five weeks.

[24] K.K.’s in-person parenting time with J.K. did not commence on August 1, 2021, as ordered. M.M. filed a Motion to Change the April 9, 2021 Order. Without first obtaining a variation order, she prevented J.K. from visiting his father. This prompted K.K. to bring an emergency motion for contempt and for remedies pursuant to Rule 1(8) of the Family Law Rules. M.M. brought a counter motion for an interim variation of the parenting Order, such that K.K.’s parenting time would be by video only and supervised.

Breaches of the Order Under Review

[25] Trimble J. heard the parties’ motions and issued a ruling on October 28, 2021 (K.K. v. M.M., 2021 ONSC 7172). He found that M.M. breached the April 9, 2021 Order by withholding in-person parenting time and by monitoring and recording K.K.’s video calls with J.K. However, he held that she was misguided and did not find her to have the requisite intent to be guilty of contempt.

[26] Trimble J. also found that K.K. breached the April 9, 2021 Order by attempting to communicate with J.K. during the no-contact period, by implicitly disparaging M.M. and by involving J.K. in the litigation (i.e., asking J.K. for permission to record their video calls for court purposes), all of which was specifically prohibited by the Order. Trimble J. also noted that K.K. undermined Ms. Connerty’s authority by questioning her role as a therapist.

[27] Ultimately, Trimble J. rejected M.M.’s request for a supervised parenting order but amended the April 9, 2021 Order to reset the timetable, such that the commencement of K.K.’s in-person parenting was pushed back to mid-December 2021. The implementation of K.K.’s in-person parenting time was subsequently delayed to January 2022 because M.M. travelled to the United States with the children in December 2021.

[28] Based on the evidence I heard during this parenting review, I find that there were additional breaches of the April 9, 2021 Order. Specifically, M.M. failed to notify K.K. of J.K.’s visit to the hospital emergency department on April 13, 2021, and failed to advise him in a timely way of the diagnosis of an adjustment disorder, contrary to specific terms in the April 9, 2021 Order that require M.M. to share J.K.’s health-related information with K.K.

[29] For his part, K.K. violated various terms of the April 9, 2021 Order by encouraging J.K. to communicate with him outside of the scheduled video calls; making no effort to locate J.K.’s Social Insurance Number card and provide it to M.M.; failing to provide M.M. with his insurer’s claim forms so she could make health and dental benefits claims on the children’s behalf; and failing to cooperate fully in the process of obtaining Overseas Citizen of Indian status for the children. K.K. also failed to comply with later supplemental Orders I made about payment of child support, spousal support, and s. 7 expenses, including timely payment of a portion of Ms. Connerty’s and Dr. Walker Kennedy’s fees.

Steps Taken by the Parties Prior to the Parenting Review

[30] Although the above breaches of court orders are relevant in assessing the parties’ respective abilities to make child-centered decisions, they are only of limited assistance in determining the residential and parenting schedule and the allocation of parental decision-making authority that promotes J.K.’s current best interests. This is because circumstances have changed in the intervening years. Both parties acted inappropriately in the immediate wake of my April 9, 2021 decision, but both have since curbed their inappropriate behaviour. In particular, M.M. ceased recording and monitoring J.K.’s video calls with K.K. For his part, K.K. recently paid the balances owing to Ms. Connerty and Dr. Walker Kennedy, and he began to make the court-ordered monthly support payments to M.M. in December 2022.

[31] Moreover, K.K. enlisted the help of several professionals to assist him in improving his parenting skills and in learning to manage his temper. Specifically, in the summer and fall of 2021, K.K. participated in individual counselling sessions with a psychotherapist, Dr. William Mole, who focused on developing his co-parenting and communication skills. In late November 2021, he started a series of eight sessions with a social worker named Viral Vyas, who specializes in anger management. After completing those sessions, in February 2022, he participated in an on-line educational course for parents who have been found to be alienators. He subsequently began counselling with a parental alienation specialist, Dr. Mary Alvarez, in April 2022. That counselling was complemented by parenting coaching that he started to pursue in June 2022 with an expert in child development, Dr. Audrey Huberman.

[32] K.K. was still attending sessions with both Dr. Alvarez and Dr. Huberman at the time of the parenting review hearing, and he indicated a willingness to continue that counselling. He said he would consent to an Order requiring him to do so. Mr. Vyas, Dr. Alvarez and Dr. Huberman all testified as expert witnesses during the hearing. They were uniformly of the view that K.K. was actively engaged in his counselling and was committed to becoming a better parent and co-parent.

J.K.’s Changed Circumstances

[33] J.K.’s circumstances have changed significantly since April 2021. He adjusted over time to his new living situation. He started attending a new school in September 2021. He developed close friendships with other students in the school; he joined the chess club and became the leader of the tech club; he played on the school’s basketball team; and he volunteered in the school office. He was struggling with English but his grades have improved with the benefit of tutoring. His recent grade 8 report cards demonstrate academic improvement relative to grade 7. He is progressing well or very well in all subjects and is performing above the median grades for his classes.

[34] J.K. also participates in several activities that are not affiliated with his school. He is enrolled in Army Cadets but his enthusiasm for that particular extra-curricular activity waxes and wanes. During summer breaks, he has attended Blue Jays camp and a chess program. He is involved in the Outreach Program for the Lawrence Heights Community Housing Project and gets paid to distribute flyers for that program. Among other things, he has learned safety tips from the Outreach Program.

[35] J.K.’s mood has stabilized. When he met with the Ontario Children’s Lawyer (“OCL”), Wendy MacKenzie, in October 2022, he told her that he does not have suicidal thoughts anymore and that things in his life are better now.

[36] The totality of the evidence suggests that J.K. is in good mental and physical health, apart from being underweight. He suffered a loss of appetite and began to lose weight after the April 9, 2021 Order. He has been followed closely by a pediatrician and nurse practitioner. M.M. has also consulted a dietician pursuant to the doctor’s and nurse’s recommendations. J.K.’s weight has since increased modestly and is being maintained. However, it still requires close monitoring.

[37] J.K. has developed trusting therapeutic relationships with both Ms. Connerty and Dr. Walker Kennedy. He continues to receive services from Ms. Connerty but only infrequently, on an as-needed basis. She checks in with him periodically to make sure he is doing fine and to remind him that he can contact her should the need arise. He participates in regular re-unification therapy sessions with M.M. and Dr. Walker Kennedy.

[38] I have limited information about J.K.’s therapy sessions and psychological progress because M.M. elected not to call Ms. Connerty and Dr. Walker Kennedy as witnesses in the parenting review hearing. She attempted to adduce reports from them, but I ordered that she could not do so unless she produced the authors as witnesses and disclosed their clinical notes so that they could be effectively cross-examined by K.K.’s lawyer. M.M. was concerned about the potential negative impact on J.K.’s therapeutic relationships with them, given the confidentiality assurances that he received from them. Both therapists wrote letters to the court expressing the same confidentiality concerns. I find that M.M.’s decision not to call them and not to rely on their reports is a sound child-focused decision that demonstrates her ability to put J.K.’s best interests ahead of her own desire to prevail in the litigation. I therefore draw no adverse inferences from M.M.’s failure to call them as witnesses.

[39] J.K. enjoys spending time with his mother, but he continues to experience periodic challenges in his relationship with her. These challenges are discussed later in this judgment. J.K. also has conflict with his sister, V.K. He is deeply troubled by the fact that V.K. is estranged from their father. The sibling conflict is also discussed in more detail below.

[40] Ms. MacKenzie, M.M., and K.K. all testified that J.K. enjoys the time he spends with his father on Sundays and would like to spend more time in his father’s care. K.K. stated that, when they are together, they play with K.K.’s dog, golf, fish, watch movies, go to temples, play cricket, visit M.M.’s medical clinic, eat meals in restaurants and go shopping at malls. They also engage in conversations about a wide variety of topics, including business, spirituality, different religions, and Canadian politics.

Credibility Assessments

[41] Before analyzing the factors relevant to the determination of J.K.’s best interests, I need to make a few comments about the parties’ respective credibility because I heard conflicting testimony from them on several issues. Both parties submitted sworn affidavits that they supplemented with brief oral testimony-in-chief, prior to being cross-examined. Page limits were imposed on the affidavits and time limits were imposed on their testimony. These restrictions were made because both parties have a history of submitting excessive documents and consuming excessive court time with unhelpful evidence on tangential issues.

M.M.’s Credibility and Reliability

[42] I found M.M.’s evidence to be credible overall. There were some internal inconsistencies, but only on minor issues of little significance. On contested central issues, her evidence was largely corroborated by documentary exhibits, such as photos, correspondence between the parties, CAS notes, and doctors’ clinical notes.

[43] My main concern about the reliability of M.M.’s evidence is her tendency to be categorical in her remarks. Her testimony reflected a personal perspective that is uncompromising and often lacks nuance. Consequently, her evidence sometimes overreaches. She will, for example, say “always” when a more accurate answer to a question would be “mostly” or “usually.” I have kept this in mind in weighing her evidence.

[44] M.M. occasionally (infrequently) requested the assistance of a Tamil-English interpreter during her cross-examination. She did not make similar requests during her testimony-in-chief. K.K.’s counsel submitted that this constitutes evidence of evasiveness that undermines her credibility. I disagree. M.M.’s counsel used plain language and asked simple straightforward questions that M.M. was likely anticipating, whereas K.K.’s counsel used more complex sentence structure and vocabulary, which she did not always grasp. I believe that explains why she only required the assistance of an interpreter during her cross-examination. She was entitled to use the interpretation services and I draw no negative inference from her decision to do so selectively.

[45] M.M.’s answers during her cross-examination were often non-responsive to the questions asked. However, I did not have the impression that she was being evasive so much as insistent on being heard on topics of importance to her. She wanted to use the court time to control the narrative and convey certain facts, despite having the opportunity to do so in her affidavit. Unfortunately, her affidavit was filled with arguments that would have been better reserved for her counsel’s closing submissions. She had very limited time to supplement her affidavit in chief before being cross-examined and she clearly felt that she had not been given sufficient time to relay her account of the relevant facts. She therefore attempted to do so during her cross-examination, rather than answering the questions she was asked. I had to redirect her several times to respond to the questions. To be fair to K.K., I extended the time permitted to cross-examine her. M.M.’s conduct during her cross-examination was unfortunate because it prolonged the length of the hearing unnecessarily, but it does not detract from the credibility or reliability of her testimony.

[46] K.K.’s counsel made observations about M.M.’s demeanour on the stand. He submitted that her combativeness and anger revealed a deep-seated hatred and loathing for K.K. He argued that her evidence could not be trusted because of her animus toward K.K. I disagree. The totality of the evidence does not support a finding that M.M. despises K.K.

[47] I agree that M.M. exhibited anger in court, but it was directed at the court, not at K.K. As set out in detail in my judgment dated June 1, 2021, she was deprived of years of parenting her children because of misguided interim court rulings that incorrectly found her to be an alienator and granted exclusive parenting rights to K.K. Her repeated attempts to engage meaningfully in her children’s lives were thwarted without justification, and recourse to the court was of no assistance to her for many years. The children suffered verbal and psychological abuse (and, in V.K.’s case, also physical abuse) while in their father’s care. She was left helpless to protect them. The protracted litigation has been an ordeal for her. It is not surprising that she feels resentful of the need to once again testify in a proceeding in which her parenting ability is being questioned and her credibility is being challenged, despite having prevailed after a lengthy 19-day trial in 2020-2021. She readily admits that she is angry with the court, and she cannot be faulted for that in the circumstances. Her anger does not, in my view, detract from the credibility or reliability of her evidence.

[48] While I do not believe that M.M. “hates” K.K., the evidence demonstrates that she distrusts him profoundly. K.K. is correct in his assertion that she interprets virtually everything he says and does as nefarious. For example, J.K. returned to M.M.’s home after an interview with Ms. MacKenzie (the OCL) wearing a t-shirt that K.K. bought for him. The t-shirt bears a logo that includes the image of a nail. M.M. testified that this was a subtle message from K.K. that “we nailed it.” The evidence does not support such an inference. Furthermore, after the OCL meeting, J.K. mentioned to M.M. that he forgot to tell Ms. MacKenzie about his father’s dog. M.M. inferred from that comment that J.K. had a list of subjects to discuss with the OCL and that K.K. must have coached him in preparing the list. While it does appear that J.K. had a mental list of subjects he wanted to discuss, the evidence does not support an inference that K.K. scripted it for him.

[49] Given M.M.’s personal abusive experiences with K.K., her hyper-vigilance toward him is neither irrational nor unreasonable. It does, however, taint her perspective and colour her evidence. For example, she deposed that K.K. was “threatening (by email) to attend” J.K.’s Army Cadets parade in June 2021, when in fact he simply requested her consent (by email) to him attending. I have therefore carefully scrutinized her characterizations of K.K.’s words and actions, and any assumptions that she makes about his intentions. I find her narrative of events to be honest, but I question the reasonableness of some of her characterizations and reject some of the inferences that she draws from the facts. That said, I note that some of her negative interpretations of K.K.’s words and conduct appear well-founded, and her hyper-vigilance is therefore likely still warranted.

K.K.’s Credibility and Reliability

[50] In contrast to M.M.’s evidence, which I find to be generally trustworthy, there are significant issues with K.K.’s evidence that cause me to question its overall credibility and reliability. The deficiencies can be grouped into three major categories.

[51] The first and most grievous deficiency in K.K.’s evidence is the fact that he made several patently false statements in his sworn affidavits and during his testimony under oath. Given the seriousness of this finding, I will provide a few examples to justify it:

a) K.K. deposed that he fully complied with all aspects of my April 9, 2021 Order. He made that sworn statement on January 3, 2023, despite Trimble J.’s October 28, 2021 ruling that he breached several aspects of the Order. I have found that he engaged in additional breaches of the April 9, 2021 Order (at paragraph 29 above).

b) K.K. deposed that J.K. made only one friend at his new school in Toronto. J.K. told Ms. MacKenzie (the OCL) that he has three friends he likes to hang out with at school. Even if J.K. did not discuss these friends with his father, K.K. knew from the OCL’s November 29, 2022 report that J.K. had more than one school friend when he swore his affidavit on January 6, 2023.

c) K.K. deposed that when J.K. comes to his home, he cooks food for him and makes enough for him to take home to share with M.M. and V.K. He characterized this as “a gesture for M.M. and V.K.” that was unreasonably rebuked by M.M. However, he conceded during his testimony that all the food he prepares is meat based, and he knows that V.K. is vegetarian. Moreover, M.M. adduced an email from K.K. to her dated April 27, 2022, in which he stated, “Please be reminded the food sent from my home with J.K. is only for J.K. Not for you to eat it.”

d) K.K. testified that M.M. recently took a vacation in India, abandoned J.K. at home alone without adult supervision, and did not tell J.K. when she was coming back. M.M. confirmed that she travelled to India for a week due to a family emergency. Correspondence in the record shows that K.K. was advised of the purpose of the trip, yet he still mischaracterized it as a “vacation.” M.M. testified that she did not share her travel plans with K.K. (she was not required to do so), but she made appropriate arrangements for J.K.’s care, was in touch with both children during the trip, and communicated to them when she would be returning. The evidence clearly establishes that K.K. knew that V.K., who is an adult, was home with J.K., and he knew that other adults were involved in J.K.’s care because one of M.M.’s friends conducted the exchanges on the Sunday that week. I conclude that K.K. knowingly testified falsely that M.M. left J.K. alone for a week.

[52] The second category of deficiencies in K.K.’s evidence is that he contradicted himself on several key issues. For example, he deposed that he attended the office of J.K.’s nurse practitioner to obtain a copy of J.K.’s medical file in December 2022, but the clinic staff contacted M.M. and she refused to permit them to release the documents to him. If true, this would constitute a breach of my April 9, 2021 Order, with stipulates that M.M. must execute a direction to J.K.’s treating health practitioners to disclose J.K.’s health information directly to K.K. M.M. signed the requisite consent form, which K.K. took to the medical clinic. During the hearing, he testified that clinic staff contacted M.M. to confirm that it was her signature on the consent-to-release form that he presented, and then they asked him to wait. He said he waited 30 minutes then left. He stated that J.K.’s records were later delivered to his office by the clinic. In other words, he conceded that he received the relevant medical records after a brief delay, that he had no knowledge of the reason for that delay, and that he had no foundation for the claim he made in his affidavit about M.M. refusing to provide consent. I infer that he deliberately fabricated this unfounded claim to try to make M.M. look bad in the eyes of the court.

[53] The final category of problems with K.K.’s evidence is the implausibility of many of the statements he made. For example, when he asked M.M. to execute a direction to release J.K.’s medical records, he put another doctor’s name as the recipient on the form. When asked about this during his cross-examination, he initially denied redirecting the records to another physician, arguing that he is the custodian of the clinic where the named doctor works, and then he stated that he “accidentally” put the other doctor’s name on the form. These statements strain credulity.

[54] Additional examples of deficiencies in the credibility and reliability of K.K.’s evidence are discussed throughout my reasons below.

Other Witnesses’ Credibility and Reliability

[55] With respect to the other witnesses who testified during the parenting review hearing, namely the OCL, Wendy MacKenzie, and the three counsellors called as expert witnesses by K.K., I found all of them to be reliable and credible witnesses.

Analysis

J.K.’s Sibling Relationship with V.K.

[56] The nature and strength of J.K.’s sibling relationship with V.K. is a relevant factor in deciding the parenting and residential schedule that is in J.K.’s best interests: Divorce Act, s. 16(3)(b).

[57] K.K. testified that J.K. and V.K. fight constantly and that V.K. hits J.K. He said J.K. complains to him about it and tells him that M.M. always takes V.K.’s side. K.K. submits that the living situation is unhealthy for J.K. and that a week-about parenting schedule would give J.K. much-needed periodic respite from the perpetual sibling conflict.

[58] M.M. testified that the children used to fight physically back in April 2021, when J.K. first came to live with her and V.K. However, she said the physical fighting stopped after J.K. received counselling about how to constructively express his anger. She stated that J.K. sometimes still speaks to V.K. in an abusive manner that parrots how K.K. used to speak to V.K.

[59] M.M. acknowledges that the children argue, but she denies that they argue constantly. She denies taking sides and favouring V.K. She testified that she separates them when they are arguing, and they are usually fine after about 20 minutes.

[60] M.M. remarked that the children’s arguments are always initiated by J.K. and are only about how V.K. treats K.K. disrespectfully. Based on the totality of the evidence, I believe these remarks are overstated, but I accept (on a balance of probabilities) that the children’s arguments are mostly initiated by J.K. and are usually about how V.K. treats K.K.

[61] M.M. said J.K. does not understand why V.K. has chosen to withdraw from their father. M.M. is arranging for V.K. to participate in family therapy sessions with Dr. Walker Kennedy to assist the children in resolving this issue. K.K. has refused to pay his share of Dr. Walker Kennedy’s fees for sessions involving V.K.

[62] M.M. testified that the children enjoy each other’s company. She stated that they like going to movies, bowling, and paintballing together; V.K. cuts J.K.’s hair; she buys him his favourite drink for basketball practice; she accepted his request to volunteer as a mentor at his school tech club, where he is the captain; J.K. values V.K.’s opinion and seeks her input when he goes shopping; and J.K. also consulted V.K. on his course selection for high school.

[63] M.M. acknowledges, however, that the children spend less time together now compared to before. She said J.K. feels V.K. has changed and is no longer his old sister. V.K. has a boyfriend now who consumes most of her time and attention. M.M. testified that V.K. and J.K. nevertheless have a strong sibling bond and good relationship.

[64] I prefer M.M.’s evidence to K.K.’s evidence on this issue for three reasons. First, M.M. has regular opportunities to witness the children’s interactions first-hand, whereas K.K. only hears what J.K. reports to him. Second, as discussed above, M.M.’s evidence is overall more credible and reliable than K.K.’s evidence. Third, M.M.’s evidence is partially corroborated by Ms. MacKenzie’s report and testimony.

[65] In her capacity as OCL, Ms. MacKenzie interviewed J.K. twice in October 2022, and she prepared a Voice of the Child report for the court. She also testified during the parenting review hearing. She relayed to the court that J.K. told her he misses hanging around with V.K. and wants to regain the closeness that they used to enjoy. Ms. MacKenzie stated that J.K. “misses the old V.K.” because V.K. has a boyfriend and is busy with her own life now, so she no longer wants to spend as much time with him.

[66] J.K. complained to Ms. MacKenzie about some things that V.K. says and does. For example, he told her that V.K. assumes a parenting role when M.M. is not present. He said V.K. lectures him and tries to tell him what to do. He feels that V.K. gets bossy when M.M. is at work and he just wants her to be fun, not bossy. He said he is bothered by the fact that V.K. does not get along with their father. Ms. MacKenzie stated her impression that J.K. is trying to be a peacekeeper between V.K. and K.K. She observed that he wants to mend their relationship and that he appears not to understand that his journey may be different from V.K.’s journey.

[67] Ms. MacKenzie was asked whether, based on what J.K. told her about his conflicts with his sister, she had the impression of any unhealthiness in their relationship. She responded no, and that it sounded like typical sibling rivalry to her.

[68] Based on the totality of the evidence, I conclude that J.K. and V.K.’s sibling relationship remains a strong, healthy, and important bond for J.K. I reject the submission of K.K.’s counsel that there is incessant conflict between them that goes beyond normal sibling rivalry. I also reject counsel’s submission that J.K. told Ms. MacKenzie implicitly that he needs space between him and V.K. On the contrary, he explicitly told Ms. MacKenzie that he is longing to bridge the distance that has emerged between them. It is clear that the children need help navigating their different relationships with their father; to that end, M.M. is taking appropriate steps to obtain professional assistance and family therapy for them.

[69] Given V.K.’s ongoing conflict with K.K. and her disinterest in pursuing family reunification therapy with K.K., I made a Temporary Order, during the parenting review hearing, that M.M. should cease asking V.K. to drop off or pick up J.K. when he goes to his father’s house. V.K. was doing the exchanges on occasions when M.M. was unavailable due to her work schedule. An incident occurred at one of the exchanges involving the use of intemperate words between V.K. and K.K. in J.K.’s presence. It is not in J.K.’s best interest to be directly exposed to their conflict, so my Temporary Order precluding V.K. from doing the exchanges will be incorporated into a Final Order.

Family Violence and K.K.’s Anger Management Issues

[70] The Divorce Act mandates that the court consider any family violence and its impact when assessing a child’s best interests: ss. 16(3)(j) and 16(4). It explicitly requires the court to consider the ability and willingness of any parent who engaged in family violence to care for and meet the needs of the child: s. 16(3)(j)(i).

[71] As the Supreme Court of Canada recently stated in Barendregt at para. 143:

Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives…. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it. [Citations omitted.]

[72] As set out in my judgment dated June 1, 2021, J.K. was both exposed to K.K.’s family violence (directed at M.M. and V.K.) and subjected to K.K.’s verbal and psychological abuse while he was residing with his father. When I made the April 9, 2021 Order, I had significant concerns about J.K. being at risk of further harm if he continued to live in his father’s home. I am now somewhat reassured by the fact that K.K. has taken meaningful steps since April 2021 to acquire self-management skills he can use to control his anger and refrain from outbursts that are harmful to J.K.

[73] The Divorce Act requires me to consider any steps taken by a parent who engages in family violence to prevent further family violence from occurring and to improve their ability to care for and meet the needs of the child: s. 16(4)(g). K.K. received some anger management tips in his therapy sessions with Dr. Mole, completed an intensive course of anger management counselling with Mr. Vyas, and also learned relevant strategies from his parenting coach, Dr. Huberman. She testified that she discussed with him how a parent’s emotional disposition is very impactful on a child. She said she stressed the importance of being a calm presence for J.K.

[74] Dr. Huberman believes that, since she started coaching K.K. in June 2022, his interactions with J.K. have been quite smooth. To her knowledge, there have not been many conflicts between them. She acknowledged that her impressions are based on K.K.’s self-reporting, but I note that they are consistent with independent evidence before me, including J.K.’s comments to Ms. MacKenzie that his father does not yell at him.

[75] There is no evidence before me that K.K. has recently engaged in abusive or intimidating behaviour toward J.K., such as a resort to shouting insults. Dr. Huberman testified that, in her opinion, K.K. seems to be emotionally present, engaged, and mindful when he is with J.K. She commented that he uses his limited time with J.K. wisely to engage in positive parenting practices. She noted that he is also practising yoga and meditation daily. K.K. confirmed this during his testimony. I conclude that the risk of J.K. being subjected to verbal abuse and intimidation by K.K. has been mitigated by the work that K.K. has done.

[76] I am persuaded by the totality of the evidence that K.K. is genuinely trying to stay calm and centered when he is with J.K. I recognize, as Mr. Vyas noted, that people do not change overnight. Anger management skills must be practiced in order to be honed and mastered. K.K. will likely slip and make some missteps along the way, but he is on the right path, and I commend him for his efforts. However, I share Dr. Huberman’s view that, when a person has limited parenting time with a child, they “get to do fun stuff and be the fun parent.” She predicted that when K.K.’s parenting time increases, “things will be a little more real.” If his parenting time is expanded, he will be required to devote time and energy to homework and academics, to instilling morals and discipline in J.K., and to quiet time together, instead of just engaging in fun activities. This may provoke conflict that could test his new anger management skills. Even J.K. seems to recognize this risk. I note that Ms. MacKenzie reported that J.K. told her his father does not yell at him “because his father doesn’t get much time with him.”

[77] I believe that K.K. loves his son dearly and does not want to harm him. I am cautiously optimistic that K.K. will be able to implement the anger management strategies imparted to him by his therapists and counsellors. They seem to have confidence in his skillset, and their impressions appear to be reasonable, and evidence based. However, the severity and prolonged duration of K.K.’s previous family violence militates in favour of a gradual re-introduction of increased parenting time for K.K. as a precaution. An immediate shift to equal shared parenting time would not be adequately protective of J.K.’s best interests. It would not satisfy the statutory requirement of giving primary consideration to J.K.’s physical, emotional, and psychological safety, security, and well-being.

Parties’ Respective Abilities to Care for and Meet J.K.’s Needs

[78] I am required to consider the ability and willingness of each parent to care for and meet the needs of the child: Divorce Act, s. 16(3)(h). Except for her misguided recording of K.K.’s early video calls with J.K. and her unilateral decision to withhold K.K.’s in-person parenting time in August 2021, M.M. has demonstrated child-focused decision-making that prioritizes J.K.’s wellbeing. She has enlisted the support and assistance of appropriate professionals to address his needs, and she has consistently followed their advice. J.K. experienced a serious emotional upheaval when he was removed from his father’s residence and temporarily prevented from communicating with K.K. M.M. helped him to manage the transition and adjust to his new circumstances. He is doing well academically, socially, emotionally, and psychologically, in large part because of her adept parenting skills.

[79] K.K. has had limited opportunities to parent J.K. since April 2021, so it would not be fair to compare his parenting efforts to those of M.M. However, it is notable that his repeated tardiness in paying his portion of Ms. Connerty’s and Dr. Walker Kennedy’s fees creates an impediment to J.K.’s ability to benefit from necessary professional care.

[80] The Divorce Act stipulates that parenting ability should be assessed in the context of the particular child’s needs, given the child’s age and stage of development: s. 16(3)(a). K.K. deposed in his affidavit that he is J.K.’s “best friend.” That statement was not made with reservation and concern, but rather was advanced as a factor in favour of increasing K.K.’s parenting time based on the strength of his emotional bond with J.K. This suggests that K.K. does not recognize and appreciate J.K.’s need to have friends who are peers. It also raises a concern that K.K. may be burdening J.K. with the emotional obligations of friendship, rather than developing his own adult friends. Dr. Alvarez expressed her opinion, during her testimony, that this is a problematic family dynamic that needs to be addressed.

[81] J.K. has informed his parents that he would like to follow in his father’s footsteps and become a doctor when he is older. He told M.M. that he may want to take over his father’s medical practice one day. K.K submits that he is better able to foster those educational and career aspirations. I disagree. Both parents are supportive of J.K.’s educational goals, both recognize the importance of him developing a strong study ethic, both prioritize academics over extra-curricular activities, and both value supportive tutoring when required. J.K. is only 13 years old. His career aspirations may change over time. But even if he does ultimately pursue a career as a physician, he is a long way from commencing medical studies. He is not yet in high school, let alone in medical school. Both parents are equally capable of providing appropriate educational support to him at this stage in his education.

“Friendly Parent” Principle

[82] The Divorce Act requires me to consider the nature and strength of the child’s relationship with each parent, as well as each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent: s. 16(3)(b)(c). These are central considerations in this case because both parties allege that the other is engaging in inappropriate behaviour that undermines their relationship with J.K.

[83] As noted previously, M.M. initially recorded K.K.’s video calls with J.K. and withheld K.K.’s in-person parenting time with J.K. in contravention of my April 9, 2021 Order. Trimble J. made it clear in his October 28, 2021 decision that her conduct in that regard was inappropriate.

[84] K.K. alleges that M.M. has continued to engage in “extreme gatekeeping” behaviour since October 2021. He bases this allegation on her refusal to extend the length of his parenting time on Sundays, refusal to agree to him having additional parenting time on other days, and refusal to consent to him attending J.K.’s Army Cadets parade in June 2021. M.M. acknowledges that she refused to waive the terms of the court’s restraining order so that K.K. could attend the parade. She also concedes that she denied requests by K.K. for increased parenting time, but she points to other occasions when she agreed to some additional time, such as during Diwali.

[85] M.M.’s conduct since October 28, 2021, cannot fairly be characterized as “gatekeeping”, which refers to circumstances where a parent takes it upon themself to decide when and how much time the other parent will have with a child. M.M. is simply adhering to the terms of the court’s Orders. Strict compliance with a court order is not tantamount to gatekeeping.

[86] In his reply affidavit dated February 12, 2023, K.K. asserts that M.M. harbours deep loathing for him. He says her animus toward him prevents her from fostering a relationship between him and J.K. He submits that this is evidenced through V.K.’s continued disengagement from him, which he attributes to M.M.’s alienating behaviour. He blames M.M. for his inability to repair his relationship with V.K., insisting that V.K. has adopted her mother’s hatred toward him. He states, “I fear for J.K.’s ability to maintain his love for me unless we equalize the parenting schedule as he is exposed to too much dislike of me, which I can only counter by showing him love and caregiving in my care.”

[87] I have already rejected K.K.’s allegation that M.M. harbours loathing and hatred towards him. Her hyper-vigilance should not be confused with animus. Moreover, there is no evidence to support K.K.’s claim that M.M. has ruptured his relationship with V.K. or has interfered with any efforts to restore the relationship. On the contrary, M.M. laments the fact that V.K. is estranged from her father because she witnesses the emotional pain it causes both J.K. and V.K. M.M.’s decision not to try to force V.K. to reconcile with K.K. does not constitute alienating behaviour. She is respecting V.K.’s legitimate adult choices, while recognizing that they create discomfort for J.K. She is trying to help the children navigate those tensions.

[88] I will not review the evidence adduced by the parties about K.K.’s ongoing conflict with V.K. I cautioned them repeatedly during the hearing that this parenting review was focused exclusively on J.K.’s best interests and that V.K.’s relationship with K.K. was only relevant to the extent that it impacted on J.K.’s best interests. I will simply note my observation that K.K. appears to be in denial about his contribution to the rift between him and V.K. He still perceives M.M. as an alienator, even though the court rejected that argument based on the evidence at trial. He blames her for his ruptured father-daughter relationship, instead of examining his own conduct and appreciating the damage he has caused, and continues to cause, to his relationship with V.K. His lack of introspection and of insight are troubling.

[89] Given the estrangement between K.K. and V.K., I can appreciate that he is anxious to avoid the development of a similar rift in his relationship with J.K. However, K.K.’s concern that J.K. will not maintain love for him unless the parenting time is equalized is not supported by the evidence. On the contrary, the evidence shows that J.K. has maintained a strong attachment to and affection for his father over the past two years, despite limited paternal parenting time, and notwithstanding J.K.’s exposure to the conflict between V.K. and their father. The father-son relationship is evidently very resilient.

[90] On the other hand, the evidence demonstrates that M.M.’s relationship with J.K. remains fragile. The progress they have made would be jeopardized by a shift to an equal shared parenting arrangement at this time.

[91] M.M. testified about J.K.’s process of reunification with her. I asked her to focus specifically on the current state of their relationship, rather than the difficult period they experienced in the immediate aftermath of my April 9, 2021 Order. She said J.K. exhibits moments of extreme affection for her and is at times carefree and openly communicative. However, he sometimes regresses and resorts to angry and abusive behaviour. She testified that he is often reflective and apologetic afterward, but he has unrealistic and distorted expectations. She explained that he will do or say something hurtful to her (or to V.K.), then apologize for his conduct and expect an immediate resumption of normalcy, only to re-engage in hurtful behaviour later, then expect it to be pardoned once again. She identified this as a “cycle of abuse” and commented that it is what he knows because it is what he observed for years in his father’s care. She explained that Dr. Walker Kennedy is trying to help him break the cycle.

[92] M.M. testified that J.K.’s behavioural changes are more noticeable just prior to and after time spent with his father. For example, after his video calls on Wednesday and Friday evenings, he is sometimes defiant and will say things to M.M. such as, “Who are you to ask me this?” He distances himself from her and picks arguments on Saturday nights, pending the transition to his father’s home on Sunday morning. Moreover, his behaviour escalates after each visit with K.K. M.M. referred to Sunday nights as “grumpy times”. She stated that he comes back from his father’s house “a different boy”. He is rude to her and makes demeaning comments such as “shut your mouth”. He tries to provoke her. He exhibits this aggressive behaviour for a few days, while she tries to be patient and reminds him to practice what Dr. Walker Kennedy has taught him. He generally calms down after two or three days and returns to normal interactions with her by Thursday. M.M. testified that this pattern repeats itself weekly.

[93] In short, M.M. testified that her relationship with J.K. has greatly improved but remains fragile and continues to need sedulous fostering. Based on her evidence, which I accept as credible and reliable, I agree with her assessment. This conclusion is also supported by Ms. MacKenzie’s evidence.

[94] When J.K. met with Ms. MacKenzie in October 2022, he spoke positively about both of his parents, which was a marked change from when she interviewed him three years prior, at which point he praised his father and stated that he feared and disliked his mother. Ms. MacKenzie noted that J.K. told her he has a strong relationship with both of his parents and would not be influenced if either parent said negative things about the other. She was asked whether she had the sense that J.K. has in fact a resilient relationship with both parents. She responded, “I think it’s still developing, but he believes it for sure.”

[95] For the sake of J.K.’s emotional development and wellbeing, it is important to ensure that the nascent bond he has forged with M.M. after so many years of estrangement is given an opportunity to grow into a secure attachment. It would therefore benefit J.K. if his father supported their relationship.

[96] K.K. deposed that he recognizes children need to have healthy relationships with both parents, and he understands that it can be harmful to children when one parent disparages the other parent. He admitted that he spoke negatively to J.K. about M.M. in the past but said that was a mistake. He also acknowledged making other mistakes. He stated that he ought to have encouraged J.K. to spend time with his mother when the children were residing principally with him; he ought to have invited M.M. to his home to celebrate the children’s birthdays; and he ought to have spoken positively to them about M.M. He insisted that he has changed because of coaching and counselling he received over the past 14 months.

[97] K.K. called two expert witnesses who attested to the progress he has made. Dr. Alvarez testified that, in her sessions with him, he exhibited the common characteristics and distorted patterns of thinking of an alienator. She said that, in the beginning, he was very focused on what was not happening for J.K. in M.M.’s house and what he needed to do to compensate. She taught him that, when he does that, it creates conflict for J.K., who is left thinking that one parent is right, and one is wrong. She helped K.K. identify where he was doing these things and understand how he was hurting J.K. by considering M.M. to be defective. She tried to help him learn, internalize, master, and begin to exercise different behaviours with J.K. that would not negatively affect J.K.’s relationship with his mother.

[98] Dr. Alvarez identified the biggest challenge in counseling K.K. as the fact that he blamed M.M. for everything. However, she noted that he has demonstrated significant progress over the course of his counselling. She believes he has mastered the concepts of parental alienation and the damage it does to children, but he requires the opportunity to implement and show what he has learned. She stated that role playing with her has limitations and that, at some point, K.K. needs to practice his coparenting skills in real world situations that are not contrived. She suggested that he be given opportunities to apply the concepts by being permitted to engage with J.K. and M.M. in natural settings that involve J.K.’s school or extra-curricular activities. She gave the example of both parents attending a recital, not necessarily sitting next to each other, but being in the same auditorium at the same time and creating a comfortable environment for J.K.

[99] Dr. Alvarez stated that K.K. would benefit from continuing counselling with her. She said she could measure the effectiveness of the counselling, in part, by the outcome of this court proceeding. By reviewing the court judgment, she would know whether she has more or less work ahead of her. Dr. Alvarez proffered her opinion that K.K. is “not all the way there yet” but said she is pleased with his progress. She stated that he still needs to be reminded that J.K.’s mother has value. She stressed that he “needs to not only accept that but to believe that.”

[100] Dr. Huberman testified that, throughout her coaching sessions, she needed to remind K.K. repeatedly that he could be comforted by M.M.’s parenting behaviours. She said it is natural for a parent to worry about their children, but K.K. needs to accept that J.K. is being well cared for by M.M. On many occasions, she had to let him know that what he was sharing with her was problematic. For example, she told K.K. that it seems he does not need to worry about J.K.’s weight because M.M. is monitoring J.K.’s weight and taking him to the doctor. She stated that although she had to correct K.K.’s interpretation many times, he was very open to her corrections.

[101] Although the evidence of these two experts is encouraging, it does not completely reassure me that K.K. has the ability and willingness to support the ongoing development and maintenance of J.K.’s relationship with M.M. K.K. testified that he now tells J.K., “Mommy loves you. She’s a good woman. She makes good food. You should enjoy it.” I am doubtful of the veracity of this evidence for several reasons.

[102] Firstly, K.K. made an inconsistent statement in his affidavit, wherein he deposed that, based on the extensive work he has done with both Dr. Huberman and Dr. Alvarez, he does not speak about M.M. in the presence of J.K. at all.

[103] Secondly, K.K.’s affidavits and testimony are replete with criticisms of M.M.’s parenting. For example, he deposed that J.K. regressed academically upon transferring to the school M.M. chose for him; he stated that M.M. fails to dress him suitably in accordance with weather conditions; he said she does not properly manage the sibling conflict between the children; he suggested that she failed to obtain appropriate health care treatment and academic supports for J.K., etc. He does not acknowledge that M.M. does anything well when it comes to parenting the children. Given the thoroughly negative views expressed by him in his evidence, I find it very unlikely that he is making complimentary comments about M.M.’s parenting to J.K.

[104] While it is possible that K.K. has at least learned to refrain from expressing his negative views about M.M. to J.K., that also seems unlikely given the overwhelming negativity he expresses in his direct email communications with M.M. Examples drawn from the evidence include such statements as, “Can you please explain why J.K. has lost weight and not gained enough weight so far under your care?” and “Can you please explain why there are so many physical altercations between J.K. and V.K. at your home?” It is obvious that he sees himself as a superior parent and has no confidence in M.M.’s ability to care for J.K. In the circumstances, I find it likely that he continues to criticize M.M.’s parenting when he communicates with J.K.

[105] Finally, even if K.K. is refraining from explicitly communicating his negative views about M.M. to J.K., he routinely engages in non-verbal forms of communication that convey to J.K. a subtle yet unmistakable disparagement of M.M. as a mother, and that position him as the preferred parent. Specifically, the evidence establishes the following: (1) K.K. implicitly denigrates M.M.’s standard of living and uses expensive gifts to elicit J.K.’s affection; (2) K.K. implicitly criticizes M.M.’s parenting and conveys to J.K. that she is inadequate; and (3) K.K. is still gaslighting M.M. All three of these behaviours are contrary to what he has supposedly learned from his parenting coach and parental alienation counselor. I will provide only one example of each of these behaviours, mindful of the caution by the Ontario Court of Appeal that I ought not to engage in a recitation of all the relevant evidence: K.K. v. M.M., 2022 ONCA 72, at paras. 21-23.

[106] With respect to K.K.’s denigration of M.M.’s standard of living and his use of expensive gifts to procure J.K.’s affection, K.K. only recently (in December 2022) started paying the full child support and spousal support ordered by the Court. He thereby deprived M.M. of the financial means to compete with his expenditures, while at the same time indulging J.K.’s desire for expensive footwear and brand-name clothing, and simultaneously discarding or withholding some of the clothes M.M. purchased for J.K.

[107] K.K. admits to making unnecessarily costly purchases for J.K. He testified that when they go shopping together, J.K. chooses “very expensive shops” and he teases J.K. by saying, “Why do you want to spend so much money?” but then tells him, “Go and get whatever you want.” M.M. testified that she is concerned about the quantity and expense of clothing and shoes purchased by K.K. because it does not teach J.K. to appreciate the value of money. Moreover, she is unhappy that clothing she purchases for J.K. disappears. She gave the example of a jacket that she bought for him, which he wore for a visit to his father’s house but returned without it. She testified that K.K. is implicitly signalling to J.K. that the clothing she buys for him is inadequate and is inappropriately using expensive gifts as inducements to compete for J.K.’s affection.

[108] During his testimony, K.K. insisted that all clothes purchased by M.M. for J.K. are returned to her house after J.K.’s visits, but there is email correspondence in the record that contradicts his evidence. For example, on December 18, 2022, he wrote to her that he bought a new jacket for J.K. “that will best fit for the current weather condition” and “will return the old jacket once the climate changes,” thereby implying that M.M. was not dressing J.K. appropriately for winter temperatures, and withholding the jacket she purchased for J.K.

[109] The most compelling example of K.K.’s implicit disparagement of K.K.’s parenting skills relates to the food that he sends home with J.K. every week. K.K. testified that he is simply trying to nourish J.K. because he is worried about J.K.’s weight. He says it is one way that he can show J.K. how much he cares for him. M.M. does not take issue with him providing some food for J.K., but she is concerned about the quantity of food. She testified that it is over-abundant, that it takes up two racks in her refrigerator, and that it does not all get consumed. She ends up having to throw some of it out, which she finds wasteful. She wants J.K. to learn to appreciate the value of food and not waste it. Moreover, she feels that K.K. is implicitly blaming her for J.K.’s weight loss and is insinuating to J.K. that she does not know how to feed him properly.

[110] K.K. denies that he sends an over-abundance of food. At one point during his testimony, he stated that the food he sends is just a “snack”. He later contradicted himself and stated it consists of four take-out size meal containers filled with food. M.M. disputes both descriptions and testified that it amounts to more than four meals.

[111] I accept M.M.’s testimony and reject K.K.’s evidence about the quantity of the food. M.M.’s testimony is corroborated by independent evidence, namely a photograph of an enormous cooler on wheels that K.K. purchased for J.K. to transport the food with him. K.K. testified that he does not fill the cooler with food, and that he only purchased such a large cooler because it was the “most convenient bag I could give J.K. for comfortable transport”. I reject this evidence as implausible and disingenuous. In any event, even if I accepted K.K.’s testimony that he only provides four containers of food weekly, photographs of the containers show that each is large enough for more than a single meal. On his own evidence, K.K. is sending J.K. home with at least eight meals’ worth of food. This is excessive by any standard and conveys an unmistakable message to J.K. that his mother is not able to feed him adequately.

[112] This implicit disparagement of M.M.’s parenting is not inadvertent. Dr. Huberman testified that one of her corrective interventions with K.K. consisted of her sharing with him that the food he delivers with J.K. may be perceived as a suggestion that the food he is receiving from his mother is inadequate. K.K. is intelligent enough to understand this. I therefore infer that he is doing it purposefully.

[113] Finally, as an example of K.K.’s ongoing gaslighting of M.M., I need only point to his recent email messages to her dated Sunday, April 2, 2023. M.M. wrote to him that morning, expressing her appreciation for the effort he makes in cooking and purchasing food for J.K., but advising that the food is overflowing and takes up too much space in her fridge. This was not the first time she expressed this concern to him. She informed him that J.K. does not eat all the food and a good quantity of it ends up in the garbage. She advised that she would be returning the leftover food that week with J.K. so that K.K. could appreciate how much is going to waste and adjust the quantity of food he sends accordingly. The tone of her email was civil and polite. K.K. responded with an angry barrage of emails, in which he called her decision to return the spoiled food “insane”, told her, “I advise you to seek counselling”, and stated, “Let me know when you are going for treatment. Will inform the court.”

[114] M.M. was extremely upset by these emails. She became emotional when they were discussed in court. K.K.’s attacks on her mental health are a particularly powerful trigger for her because of the history of psychological violence she endured. As set out in my judgement dated June 1, 2021, K.K. exploited his status as a doctor and manipulated members of the medical profession (by giving a false psychiatric history and fabricating symptoms) to get M.M. mis-diagnosed, medicated, and involuntarily hospitalized for a serious mental illness that she did not have. Both during the marriage and after their separation, he told many friends, neighbours, and service providers that she was delusional and having mental health problems so that they would be dismissive of her. He repeatedly called her “mental” in front of the children. This was a traumatic experience for M.M. that left her with significant emotional scars.

[115] M.M. testified that she is fearful K.K. will continue his attempts to undermine others’ confidence in her sanity. She testified that it is one of the reasons she does not want anyone in her social circle to meet him. For example, she is reluctant to ask friends to do exchanges for her on occasions when she is not available to pick up J.K. after a Sunday visit with K.K. She also does not want K.K. to attend J.K.’s activities, such as his basketball tournaments and Army Cadets’ parade. She worries that he will tell people she has a serious mental illness, and that people will believe him because he is a physician.

[116] I believe that K.K. is aware of the insidiousness of his gaslighting behaviour. He denied it during his cross-examination, but I find his evidence to be disingenuous and not credible. Specifically, he testified that when he advised M.M. to seek counselling, he meant counselling on how to properly store food to avoid spoilage. He claimed that his statement, “Let me know when you are going for treatment” pertained to information that J.K. had shared with him about M.M. needing a biopsy for some physical ailment. Read in context, the statements cannot reasonably bear these interpretations. I infer that K.K. lied to try to avoid accountability for his gaslighting behaviour.

[117] K.K.’s conduct is relevant to my assessment of J.K.’s best interests because M.M.’s emotional wellbeing indirectly impacts J.K.’s emotional wellbeing. She is his primary caregiver. The Supreme Court of Canada recently commented in Barendregt, at para. 173, that it is often difficult to disentangle the interests of a parent from the interests of a child. The nurture of children is inextricably intertwined with the well-being of the nurturing parent: Pelech v. Pelech, [1987] 1 S.C.R. 801, at para. 71. Courts have long recognized that a child’s welfare is often advanced in tandem with improvements in a parent’s emotional (and other) circumstances. This concept was explained to K.K. in his parenting sessions with Dr. Huberman. He has either failed to comprehend it, or he simply does not want to refrain from his relentless attacks on M.M.’s mental health, despite knowing that he is compromising J.K.’s wellbeing through his actions.

[118] I am left with no confidence in K.K.’s willingness or ability to support the development and maintenance of J.K.’s relationship with M.M., notwithstanding the extensive counselling and coaching that he has undertaken. He parrots the things that he believes his counsellors (or the court) want to hear, but he does not believe them and has not demonstrated his ability to put them into practice. This factor strongly militates against ordering a parenting schedule that would have J.K. in K.K.’s care for more than brief periods of time.

J.K.’s Need for Stability

[119] J.K.’s need for stability is relevant to the assessment of his best interests: Divorce Act, s. 16(3)(a). Like all children in Ontario, he lived through the upheaval of the COVID-19 pandemic and the restrictions that public health authorities placed on group activities and in-person schooling. He then experienced an additional personal upheaval when his primary residence was changed by court order from his father’s house in Brampton to his mother’s home in Toronto. He has slowly adapted and settled into his new living circumstances, school environment and neighbourhood. He has integrated into his local community, participates in extra-curricular activities such as Army Cadets, attends family reunification therapy in person with Dr. Walker Kennedy in Toronto, and has developed a social circle including a few close school friends his own age. These are milestones that need to be preserved.

[120] Regardless of which high school J.K. attends next fall, a week-about parenting schedule going back and forth between two residences located in different cities would disrupt the stability that he has built. It would complicate and potentially impede his participation in therapy and in extra‑curricular activities. It would also make it more difficult for him to maintain friendships. Even J.K. recognizes the disadvantages of commuting weekly between his parents’ residences because he told Ms. MacKenzie, when he met with her, that his mother could perhaps move closer to Brampton to facilitate a week-about parenting regime.

[121] In my view, this factor militates in favour of a parenting and residential arrangement that does not involve week-about transitions.

J.K.’s Views and Preferences

[122] Pursuant to s.16(3) of the Divorce Act, the court must consider J.K.’s views and preferences, provided they can be ascertained. This requirement also flows from Article 12 of the United Nations Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3: S.S. v. R.S., 2021 ONSC 2137, at paras. 38. The weight to be given to a child’s views will generally increase with their age and maturity.

[123] Ms. MacKenzie testified that J.K. is more mature than when she interviewed him in 2019, which stands to reason given his age (i.e., 13 years old). She observed that he was more thoughtful, and that he took time to process information before answering her questions. She said he did not appear to have been coached, but his views appeared to have been impacted by comments made by his parents and sister. A good example of this was when J.K. commented that if one of his parents said something negative about the other parent, that would not impact his relationship with the other parent. Such a spontaneous statement likely derives from something he overheard one of his parents say.

[124] In my trial judgment dated June 1, 2021, I hesitated to place any weight on J.K.’s views because there was evidence that he had been manipulated by K.K. and that his views were not independently formed. I no longer have that concern. J.K. has been in therapy with Ms. Connerty and Dr. Walker Kennedy and has begun to acquire critical reasoning skills. He has spent considerably less time in his father’s care and therefore has had less exposure to his father’s influence. He is still a child and is therefore somewhat impressionable, but I am confident that the views he expressed in his interviews with Ms. MacKenzie are his own.

[125] However, I am concerned about the veracity of some of his statements. For example, Ms. MacKenzie reported that J.K. told her, “[H]e used to reside with his father and his father would ask him why he wouldn’t see his mother. He said his father would encourage him to see her.” I know that statement is false, not only because of the evidence I heard during the trial, but also because K.K. admitted during his testimony in the parenting review hearing that he discouraged J.K. from seeing his mother when J.K. was living with him. It appears that J.K. is engaging in a degree of protectionism of his father. Ms. MacKenzie reported that J.K. admitted, “he probably defends his father a bit.”

[126] J.K. expressed to Ms. MacKenzie a concern about the neighbourhood where he lives with his mother. He described it as violent. He said his school is rough and also has a lot of violence. Because of these issues, he said he might like to live with his father and go to school in his father’s neighbourhood. But in the meantime, he said his current preference would be to spend one week with each parent.

[127] Ms. MacKenzie remarked that J.K. appears to be struggling to find a middle ground, “to find what he feels is stability and continue to enjoy both his parents.” She noted, “While he enjoys a relationship with both parents, he appears to miss the lifestyle he enjoyed when he was residing with his father, such as living in a nice neighbourhood and going to Raptors’ games.” J.K.’s focus on the material things that his father can provide suggests that K.K.’s strategy of using coveted items as inducements to elicit his affection is still working.

[128] I note that K.K.’s failure, up until December 2022, to pay the full support ordered by the court contributes to the marked disparity in the parties’ standards of living.

[129] Irrespective of the parties’ income disparity and the more comfortable lifestyle J.K. could enjoy at his father’s residence, J.K. clearly wants to spend more time with his father. He has a strong emotional attachment to K.K. and would benefit from having K.K. be more present in his life.

Conclusions

Parenting Schedule

[130] Taking all the relevant factors into consideration, I conclude that it is in J.K.’s best interests to increase K.K.’s parenting time, but only incrementally, and not to the level of equal shared parenting. A new parenting schedule is set out below.

[131] This is a Final Order that will not be the subject of further review:

Effective immediately:

a) K.K.’s in-person parenting time on Sundays will increase by two hours. J.K. will be in K.K.’s care from 10:00 a.m. to 8:00 p.m. every Sunday.

b) The mid-week (Wednesday evening) video call between J.K. and K.K. will be replaced by in-person parenting time from 4:00 p.m. to 8:00 p.m. This mid-week in-person parenting time shall be on either Tuesday, Wednesday or Thursday evenings, depending on J.K.’s scheduled activities and other commitments. If, for example, J.K. has Army Cadets, tutoring or therapy sessions on Wednesday nights that would conflict with K.K.’s parenting time, the parenting time shall be moved to Tuesday or Thursday nights instead. Once the day of the week is fixed, M.M. shall not schedule activities for J.K. that interfere with K.K.’s parenting time.

c) The Friday evening 20-minute video call between J.K. and K.K. shall continue. Neither party shall record the video calls.

d) Paragraph 40 of the April 9, 2021 Order is amended to read that K.K. shall refrain from being within 200 metres of M.M.’s home and workplace, but that he may attend other locations where M.M. is known to be, provided that the reason for his attendance is to be a spectator at public events in which J.K. participates. For example, K.K. may attend J.K.’s upcoming Grade 8 graduation ceremony, his year-end Army Cadets’ parade, basketball tournaments or other sporting events in which J.K. competes, any shows, concerts or recitals in which J.K. performs, and other similar children’s activities.

e) Paragraph 41 of the April 9, 2021 Order (which prohibited K.K. from being within 100 metres of J.K.’s school) is hereby terminated. K.K. may attend J.K.’s school for any events at which parents are invited to participate and may also attend parent-teacher meetings relating to J.K.’s academic progress. K.K. shall not, however, join the parent council at the school.

f) M.M. shall not ask V.K. to accompany J.K. for any of the exchanges between M.M.’s and K.K.’s residences.

g) The hours of K.K.’s in-person parenting time shall be extended beyond 8:00 p.m. if necessary to permit K.K. to take J.K. to two Raptors’ home games per basketball season. K.K. shall give M.M. two weeks’ advance notice of the game dates.

Commencing Saturday, December 23, 2023:

h) K.K.’s weekend in-person parenting time will be expanded to start at 10:00 a.m. on Saturday morning and end at 8:00 p.m. on Sunday evening (i.e., one overnight) on alternating weekends. On the other weekends, his parenting time will remain for one day, from 10:00 a.m. to 8:00 p.m. on Sunday.

i) K.K.’s mid-week in-person parenting time from 4:00 p.m. to 8:00 p.m. will continue.

j) The Friday evening video calls will continue but only on the alternating weeks when J.K. does not spend overnight Saturday with K.K.

Commencing Friday, June 28, 2024:

k) J.K. will spend alternating weekends in K.K.’s care from Friday at 4:00 p.m. to Sunday at 8:00 p.m. (i.e., two consecutive overnights). J.K. will spend the other weekends in his mother’s care, with no parenting time for K.K., except for the Friday evening video call.

l) If K.K.’s parenting weekend is followed by a statutory holiday Monday, his parenting time shall be extended to Monday at 8:00 p.m. (i.e., three consecutive overnights).

m) K.K.’s mid-week in-person parenting time from 4:00 p.m. to 8:00 p.m. will continue.

After December 1, 2024:

n) On even years, J.K. will spend the first half of his school’s holiday winter break and March Break in his father’s care and the second half of the breaks in his mother’s care. In odd years, he will spend the first half of the breaks in his mother’s care and the second half in his father’s care.

After July 1, 2025:

o) In addition to his regular parenting time, K.K. will have two non-consecutive weeks of parenting time with J.K. during the summer school breaks. K.K. shall advise M.M. of his selected parenting weeks by no later than June 1st of each year, commencing June 1, 2025.

Parental Decision-Making Authority

[132] Based on the totality of the evidence, I have decided to reject K.K.’s request for shared parental decision-making authority. The two primary factors that I have considered in reaching this conclusion are the ability and willingness of each party to communicate and cooperate with one another on matters affecting the child (Divorce Act, s. 16(3)(i)), and the appropriateness of making an order that would require M.M. to cooperate with K.K., given the violence to which she has been subjected at his hands (Divorce Act, s. 16(4)(b)).

[133] The parties have no realistic hope of being able to coparent effectively. I make this finding in part because of M.M.’s profound distrust of K.K., but mostly because K.K. has no respect for M.M.’s parenting and regularly exhibits disrespect toward her in his communications. When his emails to M.M. are not outright insulting, condescending, or hostile, they are passively aggressive. It is not in J.K.’s best interest for M.M., his primary caregiver, to be continuously subjected to such psychological abuse. Communications between the parties should therefore be restricted, not encouraged.

[134] Having to make joint decisions about J.K.’s education, health care, religious upbringing, etc. will necessitate more contact and communications between the parties, which will inevitably result in more conflict. J.K. needs the conflict to de-escalate. Moreover, he needs timely decisions to be made and joint decision-making would likely result in impasses between the parties, to J.K.’s detriment. The issue of the high school that he is going to attend is a good example of the type of impasse that is not in J.K.’s best interests.

[135] M.M. remains, in my view, the parent who is most capable of making child-focused decisions. She will therefore retain exclusive parental decision-making authority with respect to J.K., and she is not required to consult K.K. before making decisions. However, she must continue to abide by the orders made on April 9, 2021 with respect to timely disclosure to K.K. of emergency medical situations or medical diagnoses and prognoses affecting J.K.

J.K.’s High School

[136] In accordance with paragraph 5 of the April 9, 2021 Order, M.M. has the exclusive authority to determine which high school J.K. will attend. She testified that, from among the schools in her area, J.K. chose John Polanyi school, which is a short walking distance from her home. It has a specialized program in Science, Math and Robotics. M.M. described it as a highly competitive program that admits only 26 students annually. She helped J.K. prepare for entry to the program starting in Grade 7. He was successful in his application and is excited because two of his close friends have also been accepted into the program. She has already taken steps to join the parent council at the school (which is why I have ordered that K.K. cannot join the council).

[137] Based on the evidence, I find that M.M. made a sound decision with respect to J.K.’s secondary education, which takes his views into account and promotes his best interests. There is no basis upon which the court should interfere with her decision.

[138] K.K. adduced evidence that Castlebrooke high school in Brampton has a higher academic ranking (based on provincial testing) and is in a geographic area with a lower crime rate than John Polanyi school. Those are relevant considerations, but are not the only factors in selecting an appropriate school for J.K. Moreover, the issue of selecting a high school for J.K. is secondary to the issue of determining the residential and parenting schedule that is in his best interests. I have concluded that J.K. should continue to reside principally with his mother in Toronto. He should therefore attend a school in Toronto. I note that M.M. testified about precautions she has taken in conjunction with other parents to ensure that J.K. and his friends will be safe when they walk to and from high school.

Travel Restrictions

[139] Both parties requested that I lift the travel restrictions applicable to each of them in the April 9, 2021 Order, which prohibit K.K. from travelling with J.K. outside the Greater Toronto Area, and prohibit M.M. from travelling internationally with J.K. other than to the United States to pursue V.K.’s post-secondary educational goals.

[140] K.K. testified that J.K. wants to travel with him to Great Wolf Lodge in Niagara Falls, and to California and India. I understand that K.K. would like to expose J.K. to enriching travel experiences, but it would not be in J.K.’s best interests to spend extended time traveling with his father, given the ongoing fragility of his relationship with M.M., and K.K.’s ongoing implicit disparagement of M.M.’s parenting and denigration of her standard of living.

[141] Also, given K.K.’s family ties in India, the fact that he is building a hospital in India, the rupture in his relationship with V.K., and his history of previous breaches of court-ordered travel restrictions (see paragraphs 523 to 532 of my June 1, 2021 judgment), there is a risk that K.K. could try to permanently remove J.K. from Canada if he were permitted to travel with him to India.

[142] However, it would be in J.K.’s best interest to have the ability to travel short distances with his father to explore activities and regions outside the Greater Toronto Area. In the past, they have enjoyed skiing at Blue Mountain and other such outings.

[143] There is no longer any reason to restrict M.M.’s travel with J.K. The prior restriction was imposed only because the change in J.K.’s principle residence constituted a major upheaval in his life, and he needed time to settle into a new routine without it being interrupted by extended international travel.

[144] For the above reasons, I make the following additional Orders:

a) Paragraph 36 of the April 9, 2021 Order shall be replaced with the following: K.K. shall not travel with J.K. outside of the province of Ontario unless he obtains M.M.’s prior written consent. This Order shall remain in effect until J.K. attains the age of 18 years.

b) Paragraph 37 of the April 9, 2021 Order shall be replaced with the following: M.M. may travel with J.K. for up to 3 consecutive weeks. If she travels interprovincially or internationally, she shall provide K.K. with a minimum of two weeks’ notice (absent urgent circumstances) and shall give him a copy of J.K.’s travel itinerary. She shall also facilitate at least two weekly video calls between J.K. and K.K. while they are travelling. There shall be no “make-up” in-person parenting time for K.K. as a result of M.M.’s travel with J.K.

Ancillary Orders

[145] M.M. shall provide a copy of this decision to Ms. Connerty and to Dr. Walker Kennedy.

[146] K.K. shall provide a copy of this decision to Dr. Huberman and to Dr. Alvarez.

[147] I strongly recommend that K.K. continue his coaching and counselling sessions with Dr. Huberman and Dr. Alvarez.

[148] The Final Order dated April 9, 2021, remains in effect except to the extent that it is varied by this judgement.

Costs

[149] Although there has been divided success on the issue of expanding K.K.’s parenting time, M.M. was more successful on that central issue and she prevailed on all the other issues in the review, so she is presumptively entitled to her costs per Rule 24(1) of the Family Law Rules.

[150] The parties have already submitted Bills of Costs. If they cannot agree on costs, they are invited to make brief written submissions, not to exceed 2 pages double-spaced, excluding any offers to settle. M.M. shall serve and file her submissions by June 23, 2023. K.K. shall serve and file his submissions by July 7, 2023. Both parties shall also upload their costs submissions to Caselines. There shall be no reply submissions unless requested by me.

Petersen J.

Released: June 2, 2023