J.R.D. v. S.B. , 2023 ONSC 46

COURT FILE NO.: FC-18-00000502-0000

DATE: 2023-01-11

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.R.D.

Applicant

– and –

S. B.

Respondent

Self-represented

Marlene VanderSpek, as counsel for the Respondent

Erik Grinbergs, for the Office of the Children’s Lawyer, as counsel for the Child

HEARD: September 6, 7, 8, 9, 13, 14, 15, and 16, 2022

THE HONOURABLE JUSTICE w. l. macpherson

REASONS FOR DECISION ON MOTION TO CHANGE RE: PARENTING

INTRODUCTION

[1] This is a motion to change the order of Justice L. Rogers dated May 10, 2012 (“the Rogers order”) commenced by the respondent, S.B. (the “mother”), in August of 2018.

[2] Under the Rogers order, the parties shared custody of the child, S.D.D. (“S.”) born in August 2007. The child was to be with the applicant, J.R.D. (the “father”), every weekend, although the mother was able to request weekend time.

[3] Under the Rogers order, child support was set at $377 per month which was $75 less than the Child Support Guidelines required on an annual income of $50,253. The usual ongoing financial disclosure clause was included.

[4] The mother seeks an order granting her primary residence of the child and sole decision-making responsibility. Instead of a set schedule of parenting time, given what has transpired over the years and during these proceedings, the father’s contact with the child would only occur if initiated by the child. Currently, the child is not having any parenting time with the father, with all contact having ceased in September 2021. The mother requests that the father not have access to the child’s health and educational information, except with the child’s consent. Finally, the mother also asks for a review of the child support provisions.

[5] In accordance with the wishes of the child, counsel from the Office of the Children’s Lawyer (“OCL”) supports the mother’s position on parenting time, decision-making responsibility and access to information regarding the child.

[6] The father seeks to amend the Rogers order to have the child enjoy parenting time with both parents on an equal basis. The parties would also continue to be jointly responsible for making decisions regarding the child. He seeks to have child support adjusted based on a shared parenting arrangement with a set-off calculation to be applied. Given his recent change in employment and reduced income, child support would be payable to him by the mother.

Initialization

[7] Before setting out the main issues to be determined in this proceeding, it is important to address the request made by the mother’s counsel that the names of the parties and the child (and by extension that any other person’s name from which the child’s identity could be gleaned) be initialized. The OCL supports this request. The father did not voice any objection to the use of initials in my decision.

[8] Although the request is unopposed, before granting same, it is nevertheless necessary to address the competing interests as between the principle of the court being open and the recognition of the inherent vulnerability of children and protection of their right to privacy.

[9] Open and accessible justice is a foundational principle of a functioning democracy. Public access to the courts guarantees the integrity of judicial processes by demonstrating that justice is administered in accordance with the rule of law. The open court principle must be recognized and be respected and be intruded upon as minimally as possible: see Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (S.C.C.). Simply wanting privacy, or the fact that openness might be embarrassing or distressing to certain individuals, does not meet the requisite threshold of raising an important public interest that should justify a departure from the open court principle.

[10] However, there are categories of cases that have been found to be worthy of intruding upon the openness principle: see Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481 (C.A.); G.S. v. K.S., 2020 ONSC 5227, 46 R.F.L. (8th) 357 (Ont. S.C.); and L.C.F. v. G.F., 2016 ONSC 6732, 86 R.F.L. (7th) 338 (Ont. S.C.).

[11] Whenever a child is affected by a court or government process, the primary consideration must be the child’s best interests. This principle is enshrined in article 3.1 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the “Convention”), to which Canada is a signatory. The Convention requires that children be afforded special safeguards, care and legal protection by the courts on all matters involving their best interests, including privacy.

[12] This case involves a high-conflict custody dispute. Considerable evidence has been heard regarding the child’s mental health struggles, disclosure about alleged mistreatment of the child by one parent, sexualized behaviour, as well as allegations of family violence. I have no doubt that to have the child readily identified would cause significant emotional harm to this particularly vulnerable child. In the circumstances of this case, I am satisfied that this is one of those times in which the openness principle must be intruded upon to protect the privacy of the child, S.

ISSUES

[13] Parenting:

a. Has there been a material change in circumstances that requires an amendment to the shared decision-making regime?

b. Has there been a material change in circumstances that requires a change in the parenting time?

c. Has there been a material change in circumstances that requires a change in the parenting order, such that the father should be prohibited from obtaining information from third parties regarding the child?

[14] Child Support:

a. Has there been a material change in circumstances that requires a variation in the child support obligation of the father?

b. Should income be imputed to the father? If so, in what amount?

c. What should be paid as ongoing child support?

d. Are there child support arrears owing?

[15] In an effort to address the most pressing and time sensitive issue of parenting and to avoid any further delay in the release of the court’s decision on that issue, separate reasons will be released on the financial issues at a later date.

OVERVIEW

[16] The parties began a relationship in late 2002 while both were residing in St. Catharines. In the spring of 2005, they moved together to Kitchener. The parties’ only child, S., was born two years later in August 2007. It was evident that both parents were actively involved in the care of the child while they were together. At one point, the mother returned to full-time employment and the father stayed at home. The seasonal nature of the father’s employment as a mason also afforded him an opportunity to parent the child.

[17] The parties purchased a home in Kitchener in September 2008. However, in 2009, when the child was about one and a half years of age, the parties separated. The parents had very different views as to the cause of the breakup. Nonetheless, despite their differences, they continued to live together in the home for some period.

[18] Toward the end of the summer in 2011, the mother moved with S. to St. Catharines. The father was advised of the move a couple of weeks before the school year was to begin. He strongly opposed this move and commenced an action in the Kitchener Ontario Court of Justice later that year.

[19] Ultimately, the case was resolved by way of a consent, which terms were incorporated into the Rogers order dated May 10, 2012. This order provided for the parties to have joint custody. The father was to continue to have generous time with the child, every weekend from Friday (between 3:00 p.m. and 5:00 p.m.) until Sunday at 7:30 p.m. The order also allowed for an expansion of access to include the extra days on long weekends.

[20] With regard to the mother’s parenting time, in addition to having the child remain with her during the weekdays, the mother was entitled to have two Sundays or one weekend with the child in every two-month period.

[21] The parties were to share transportation for exchanges on an equal basis, whether by meeting halfway or alternating the driving. According to the father, within two or three months of the Rogers order, he became responsible for all transportation as the mother’s car had been repossessed and she only drove, meeting halfway, if her boyfriend at the time had a car.

[22] In 2014, the father was working more regularly in Niagara, and he moved back to the area to be closer to the child. Almost immediately, he began to have the child in his care regularly during mid-week times (for evening and overnight visits) in addition to every weekend. From the mother’s perspective, the father dictated that he would have this additional time with little ability for her to challenge same.

[23] The mother continued to request weekend time with the child but was only permitted few and very restricted visits. The father expressed that he always tried to accommodate any of the mother’s requests, but she did not often request additional time.

[24] In 2016, the mother began to reside with her current partner, G.M. Over the course of this year and into 2017, the father’s efforts to continue with increased mid-week times, including many overnights, began to be resisted by the mother and, for the first time, the mother insisted that the Rogers order be followed.

[25] Conflict between the parents continued over the parenting schedule, with police involvement being threatened or occurring on several occasions. As the parties were unable to negotiate any changes to the Rogers order, in August 2018, this litigation began with the mother requesting alternating weekend time with S. The chronology of the litigation is detailed below.

[26] The child’s primary residence with the mother as established under the Rogers order has remained with one exception. In early April 2021, the child began to spend more time with the father and eventually the child moved in with him, expressing a desire to take a break from her mother. S. remained with the father until early June 2021. During this period and in May 2021, the child was hospitalized for suicidal ideation. She remained at McMaster Hospital for just over three weeks. After being discharged in mid-June 2021, the child returned to the father’s care. By the end of that month, S. had returned to the primary care of the mother and the regular parenting schedule resumed, being weekdays with the mother and weekends with her father.

[27] Until February 2020, the child’s time with the father continued, during which most weekends, holidays and summertime were spent with the father. The child had begun to spend additional time with the mother on some weekends, which was a source of frustration for the father. In late February 2020, the child expressed a desire to take a break from the relationship with the father and remain with the mother. This was the first of many “breaks” between February 2020 and September 2021. The child has not seen the father since early September 2021.

Chronology of Proceedings

[28] In August 2018, the mother brought a motion to change the Rogers order seeking sole custody, a different parenting schedule that provided her with weekend time with the child, and a review of the child support provisions.

[29] The father filed his response to the motion to change on September 18, 2018. He asked that the joint custody arrangement continue. He also sought a revised access schedule that would have the child residing with each parent for seven days in a 14-day period (with him in week one from Thursday after school until Monday morning before school, and in week two from Wednesday after school until Friday morning before school). The child support would be revised based on a set-off calculation and his income of $61,800.

[30] On October 22, 2018, an order was made requesting the involvement of the OCL.

[31] A case conference before a dispute resolution officer was held on December 5, 2018, and Christmas access was agreed to between the parties.

[32] A settlement conference was scheduled for June 26, 2019, but it was adjourned for the OCL to conduct additional interviews. Over the next several months, at the request of counsel, the settlement conference was adjourned several times.

[33] The initial OCL counsel appointed was James Stengel. He passed away in October 2019 and, in the circumstances, a further adjournment was required so that his replacement, Erik Grinbergs (“OCL counsel” or “Mr. Grinbergs”), could become familiar with the file and meet with his client.

[34] On March 11, 2020, a settlement conference was finally held. On that date and on consent, the parties agreed to reconciliation counselling with Gillian Sheldrick, with the cost to be shared 69 percent by the father and 31 percent by the mother.

[35] Five days later, the courts were closed due to the COVID-19 pandemic.

[36] Another settlement conference was held before Justice Donohue on December 2, 2020.

[37] A trial scheduling conference was held on March 2, 2021, and the matter was placed on the October 2021 trial sittings.

[38] Another settlement conference was held on October 8, 2021 but did not result in a resolution.

[39] Unfortunately, the matter was not able to proceed to trial as Ms. VanderSpek, counsel for the mother, was scheduled on a long trial that overlapped with the trial sittings.

[40] On October 21, 2021, the matter was adjourned to the May 2022 trial sittings set to commence May 16, 2022. At the trial readiness court on April 28, 2022, the matter was removed from the May trial list, as the child had recently been admitted to McMaster Hospital and the parents would be unavailable for trial.

[41] A further settlement conference was held before Justice Donohue on July 13, 2022. The matter was set for trial in advance of the October 2022 trial sittings, commencing on September 6, 2022.

THE LAW

[42] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c.C12, as amended (“CLRA”), provides:

Variation of orders

(1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

Relocation

(2) For the purposes of subsection (1), the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances.

Corresponding variation of parenting order

(3) If the court varies a contact order, it may also vary the parenting order to take into account the variation of the contact order.

Corresponding variation of contact order

(4) If the court varies a parenting order, it may also vary any contact order to take into account the variation of the parenting order.

[43] The determination of whether to change a decision-making or parenting order is a two-stage process.

[44] In F.K. v. A.K., 2020 ONSC 3726, 43 R.F.L. (8th) 411, at paragraph 49, Justice Pazaratz summarized the law as follows:

a. There must be a change in the condition, means, needs or other circumstance of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, could likely have resulted in a different order”. L.M.L.P. v. L.S. [2011] SCC 64.

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the order.

[45] At paragraph 50, Justice Pazaratz explained the second step:

a. If a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c. The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young, 2003 CanLII 3320 (Ont. CA).

d. The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio, 2019 ONCA 548 (Ont. CA).

e. Any assessment of the best interest of the child must take into account the relevant circumstances pertaining to the child’s needs and ability of each parent to meet those needs. Gordon v. Goertz.

[46] Section 24 of the CLRA sets out the factors the court must consider in determining the best interests of the child.

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

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

Factors

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

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

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

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

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

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

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

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

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.

[47] This is the lens through which the evidence must be considered.

WITNESSES

[48] The mother testified at trial. Her partner, G. M., also provided evidence. Although it had been anticipated that the court would hear from various counsellors who have been involved with the child over the years (Kathryn Walsh; Donna Tyler; Rita Vesco), none of them were summoned to trial. According to the mother’s counsel, this was done to give support to the child’s wish that she did not want her father to be aware of her treatment/counselling. These were private matters, and the child expressed serious concern that the father will not respect her privacy. The OCL supported this position.

[49] The father and the child had participated in reconciliation counselling with Gillian Sheldrick. Multiple reconciliation sessions took place between 2020 and 2021. Each time Ms. Sheldrick became involved, the “break” in parenting time was “repaired” and parenting time resumed. Neither parent called Ms. Sheldrick to testify.

[50] The OCL called one witness, Mary Polgar, an OCL clinician for the child.

[51] The father testified. He called no other witnesses. As with the mother, although multiple witnesses were shown in the trial scheduling endorsement form, he chose not to call any of them, including his mother, D.D., and his current partner, L.A.

[52] No expert witnesses were called by either party.

[53] It is impossible to discuss all the evidence presented over the course of this eight-day trial. However, I have considered the testimony of each witness and have reviewed every exhibit. In these reasons, I have addressed what I have found to be the most relevant aspects of the testimony and evidence tendered during trial. I have considered the totality of the evidence in my determination of the substantive issues of decision-making responsibility and parenting time and the order that is in the best interests of the child.

PARENTING TIME AND CONFLICT

[54] According to the mother, in the first year following the Rogers order, the joint custody arrangements worked well. The parties were flexible with each other, and she was able to arrange some weekend time with the child. As she had hoped, the father seemed to understand that the move to Niagara was not done to remove him from S.’s life, nor would he lose contact with the child.

[55] However, after about a year, it became more difficult for the mother to arrange weekend time with the child. An argument would always ensue. When the father moved to St. Catharines in the spring of 2014, he immediately began pushing for more mid-week time. Initially, this took place around extracurricular activities and for a few extra hours. The father then began keeping the child for mid-week overnights, not as a request but he would dictate that this was what was happening. If the mother opposed this, or if the mother attempted to take her weekend time, the father became nasty with her, calling her “every name in the book” such as a “piece of shit”, “cunt”, and “useless lazy mother”. Eventually, she was not emotionally strong enough to deal with his disparaging comments. It was easier for her to allow the mid-week visits and only ask for the child for significant family events rather than pushing for full weekends or full Sundays as provided for in the Rogers order. However, even when the father agreed that the child could spend weekend time with her mother, he would severely restrict the times and insist that his lost time needed to be made up.

[56] According to the father, he always remained very flexible and accommodated most of the mother’s requests for weekend time with the child. Once he had returned to St. Catharines, the mother was completely onboard with mid-week visits taking place on a regular basis. She worked afternoons, weekends and late evenings as a bartender until 2016/2017. Given his work, which finished at 3:00 p.m. most days, the father was more readily available to care for the child, able to pick her up after daycare/school, could get her to an activity, and ensure she was fed dinner and bathed if the mother was working late.

[57] The father states that this flexible arrangement continued until the late fall/early winter of 2016. At this point, the mother became more restrictive with the father’s time with the child and strictly followed the Rogers court order which did not permit him to have any mid-week time.

[58] The father testified extensively about the parenting time that he spent with S. Unlike many family cases, this was not a situation where the father failed to exercise the parenting time granted to him.

[59] Over the objections of the mother’s counsel, the father was allowed to file as an exhibit a calendar that he had prepared to document the times that the child was with him. The calendar began on April 2, 2014 and ended on May 6, 2018. There were gaps in the tracking from July 2015 to the end of November 2015. The explanation provided was that the father’s cell phone had died and he was unable to restore the text messages.

[60] The mother’s counsel objected to the calendar being entered as an exhibit in the trial. Although this had previously been provided by the father’s counsel, the calendar entries had not been put to the mother in cross-examination. The entries were not made contemporaneously with the events.

[61] The calendar did substantiate the following:

1. The father spent much additional time with the child, particularly during midweek (this was not disputed by the mother);

2. While the father initially referred to this document to show that he spent 8, 10, 18, 21 extra days in a month with the child – when asked by the court, he clarified that the extra time might have been only a few hours rather than full days, but sometimes expanded to an overnight period;

3. The father took the child to many dental and medical appointments (this was not disputed by the mother), and he often cared for the child when she was ill and had to stay home from school; and

4. The mother had limited time with the child on the weekends; there were no more than two full weekends (Friday to Sunday) in that entire time period.

[62] The calendar did not confirm:

1. The child spent an equal amount of time with the father. During cross-examination, the father seemed to suggest that, if you counted the hours the child was sleeping and in school, he had many more waking hours with the child in a week than the mother did, but then retreated from this. He did acknowledge that the Rogers order did not allow him to have the child for an equal amount of parenting time;

2. The reason for the mother’s limited weekend time with the child. Although he suggested multiple times that the reason for the mother’s limited weekend time was that she did not ask or was not available, the father acknowledged to the court that the mother might have asked for additional time, and he had refused the request; and

3. Despite many suggestions by the father that 2016 was when the tactics began by the mother with the intent to split him and the child up and that this continued into 2017 and 2018, the entries did not substantiate this theory about the mother’s intentions.

[63] The father also sought to have various text messages tendered as evidence to support the calendar entries, to show exchanges between the parties and the high level of cooperation until 2016 and to provide some nasty texts sent by the mother in 2017, such as a promise to “make his life a living hell” before commencing this proceeding.

[64] The mother’s counsel strenuously objected to the multitude of text messages that the father attempted to tender. In advance of trial, Ms. VanderSpek had advised the father of her objections on the basis that the messages were incomplete and provided only a snippet of the entire trail of text messages, and at trial it remained unclear how the texts messages had been downloaded and whether there had been any amendments made once the string of text messages had been converted into a word document. As the mother no longer had the cell phones that she had been using at the time, she was not able to verify the accuracy of the texts. Further, none of the text messages had been put to the mother on cross-examination by the father.

[65] Referencing the calendar, and at various other stages in his testimony, the father wanted to refer to text messages to substantiate a point. The court was unable to admit into evidence the text messages between the parents. It was clear that the complete communication had not been produced. There were significant gaps which prevented the court from having a total picture of the exchanges. Although it was understandable that the complete record would have required the filing of “15,000 pages” if the father had included everything, that would have been the only way for the text messages to become part of the evidence.

[66] Nonetheless, even without the text messages, the father’s evidence regarding the calendars was informative in many ways, some examples being:

a. When discussing entries from May 2015, the father confirmed that although Wednesday dance classes had finished on May 20 and the mother wanted the child returned without a sleepover, “I think we argued a little bit, but I still maintained [S.]’s overnights”;

b. In October 2016, the father put the child in piano lessons which took place on Thursdays. He testified that, “I was the parent that was on board with the, the piano lessons.” He began to keep the child overnight as well on Thursdays, and by mid December 2016 he had arranged for a babysitter to drive the child to school on Friday morning from his home if he was not able to do so. When cross-examined about this and asked if the mother had agreed with piano lessons, the father’s answers included: “she didn’t disagree”; “I mentioned it and she didn’t say anything about not doing it”; and “I didn’t really ask for her permission, I told her we would be signing her up for lessons on Thursdays”.

c. By December 2016, the problems with the parenting schedule had really escalated. The father had allowed the mother to have the child on Saturday, December 3 from 12:30 p.m. until 4:00 p.m. and for the day on Sunday, December 18 to go to Kitchener. As it was an even-numbered year, the child was to be with her mother from no later than 7:00 p.m. Saturday, December 24 until Sunday, December 25 at 2:00 p.m. The mother also asked to have the child for New Years weekend as well as the weekend of January 7, and the father testified, “To me that wasn’t happening [the mother having four out of five weekends] and we created a dispute.” He threatened to call the police to ensure that the court order was followed and he was able to have the child for the New Years weekend. The mother testified in reply that G.M. had won box seats to an Ottawa Senator versus Toronto Maple Leafs hockey game in January. When she had requested the child on the weekend to attend the game, the father’s response was “absolutely not” because the mother had just had time with S. over Christmas. This turned into a major argument between them. After telling S. that she would not be able to go to the hockey game, even the child’s efforts to get the father to allow this could not change his mind, much to the child’s disappointment. The mother then had to endure “text bombing” from the father about trying to take away his time with S.

d. In February 2017, the mother had requested, and the father had agreed, that the child could attend a birthday party with the mother at the Merritton Community Center on Sunday, February 19.

According to the father, and as shown in the calendar, the child was to be with her mother from 1:00 p.m. to 3:00 p.m., but in fact the child was with the mother until 5:00 p.m. that day. The father had arrived at the agreed upon time of 3:00 p.m., but the child was not coming out to the parking lot. He did text the mother to tell her he was there and to send the child out. That was when she told him the child was staying overnight with her so they could go to public skating on the next day, which was Family Day. The father advised that, if the child was not sent out, he would be calling the police.

Although the mother did not testify in detail about this event, G.M. confirmed that the mother had called him that afternoon asking for his help. She had been getting texts from the father demanding that the child be returned immediately or else he would be calling the police. G.M. drove to the community center as support for the mother, moved the mother’s car so that it could not be boxed in and escorted the mother and S. outside, which allowed them to leave and go to his parents’ home. He was aware from past events that the father would not hesitate to make a public scene causing upset for the mother and the child. He expressed frustration that rather than just wait until the party was over the father would call the police. G.M. also confirmed that the plan had been that the child would be returned to her father’s care after the party.

The police did eventually attend at the community center and, after speaking to the mother on the phone, the child was returned to the father just before 5:00 p.m.

The father did permit the child to attend with the mother and G.M. on the Monday morning for a Family Day public skating event but insisted that she be returned right after.

e. The father expressed that it was in 2017 when his time with the child started to be clawed back piece by piece for the duration of that year. In cross-examination, he expressed, “I don’t think that’s fair for her to be able to have that power when we re-established a status quo for over two years”.

f. On Thursday, April 13, 2017, the father attended at the school to pick up the child to take her to piano lessons, and the mother’s partner G.M. had picked the child up early from school. The father then drove to G.M.’s house, knocked on the door, and insisted that the child come with him so that he could take her to piano lessons.

G.M. also testified about this event. He had gone to the daycare/school Thursday, April 6, 2017 to pick up the child. The father was already there and things were getting heated with the father making inappropriate comments to G.M. Knowing that “school is hard enough for kids” and to avoid a scene, G.M. left.

The following Thursday, the mother had asked G.M. to remove the child early from daycare/school, which he did. Soon afterward, the father arrived at his home, hammering on the front door. G.M. directed the child to go to her room. As soon as he opened the door, G.M. was confronted by the father, who was “pretty much in [his] face” and almost pushed his way into the house. G.M. attempted to talk to the father outside the front door, but the father started screaming the child’s name repeatedly until S. came through the door, walked past G.M. and got into the father’s car. G.M. had repeatedly expressed to the father that this was not his parenting time under the Rogers order, to which the father replied, “I don’t give a crap about you or [the mother] or the court order”.

Nonetheless, from the father’s perspective, the only conflict about piano arose because the mother unilaterally pulled the child out of the lessons and would not let the father pick her up on Thursdays as of April 20, 2017.

g. The mother began to schedule events during “his” time, such as camping trips, vacations, etcetera, just to entice the child away from their time together. One such incident occurred during the long weekend in May 2017.

h. The father testified that he did become upset by the increasing “no notice interruptions” in his parenting time and being told about them at the last minute. He spoke several times about the inappropriateness of the child being given a choice to either go for scheduled time with him or do something with the mother during the same time. He also expressed that he should have been told by the mother of these plans and that it was irresponsible of the mother to let S. tell him. When it was suggested that perhaps this was done so that the mother would not have to be subjected to name calling and verbal abuse, he did not deny the name calling, and responded, “We can apologize, and we can move forward. We have a duty to raise our daughter together. It’s not for one person to take it from the other. We’re not always going to compromise good, there’s going to be some clashes and I’m still in it to, I’ve always been in it for this compromise to, to be an equal parent to [S.]”

[67] The father also tendered a journal that belonged to the child. He would encourage her to write in it while on visits with him, to also write about her emotions rather than keeping them bottled up inside, and he would also make entries describing what had happened through the week when they had been apart. This also allowed the child to practice her writing skills.

[68] The journal was kept at the father’s home until 2018 when the child took it to her mother’s home and lost it. Upon finding it in 2020, the child returned the journal to the father. Despite trying to get her to use it again, the father was unable to get her to write in it after that. At that point, he began using it for his own notes.

[69] The mother’s counsel objected to this journal being accepted into evidence on the basis that the contents had not been put to the mother in cross-examination, it contained confidential discussions between the child and her father, and it had been edited. The OCL counsel also objected on privacy grounds. However, it was allowed to be entered as an exhibit as there was no presumption of confidentiality as it represented communication between the child and her father, not as between the child and a health professional. In addition, the mother would be able to address same in reply.

[70] According to the father, this journal was evidence of the very close relationship between him and the child, and it should be accepted to show how the child was very upset by the loss of time with her father that was imposed on them by the mother and the impact of phone calls no longer occurring between the father and child. As he testified, “We were doing everything we could to maintain that relationship even though the respondent had been clawing back the times. It was just to really show how her actions are affecting the well-being of father and daughter.”

[71] The child’s entries do include expressions of her love for her father, that she missed him during the past week, and a hope to be able to spend more time with him. However, the printing that was identified as the child’s was to a large extent indecipherable, many entries were undated and not in chronological order, some pages had been corrected/written over by the father’s girlfriend at the time, K.G., and there were some pages that were torn or cut out. The child’s writings often followed very expansive writings by the father that stated:

a. how sad he was to not be seeing the child through the week;

b. how unfair it was that they cannot spend Thursdays together anymore;

c. how he wished the mother would let them see each other during the week like it used to be;

d. how disappointed and sad he was when the child did not call him and how proud he was when she did;

e. how super sad he was that the child would not be spending the long weekend with him (May 2017) – which was followed by an entry from the child:

“Hi Dad Thank you for righting to me. My mom has to stop theies games thir not gast upseting you thir upseting me to. I hope she stops. I hope docter Kathryn is open for space would you take me? I hope so Oh DaD I loved that huge at least we might have the other weekend together if we keep our fingers crost wish I could be with you for ever oh DaD I LOVE YOU” [sic]

It is unclear if the following entry is on the same day, as it is undated, on the next page and in different ink.

“i hope we get to see eachother next weekend. All my love is in thease Pages all I can give to you is my love read it a bed I LOVE YOU ♥” [sic]

CHILD’S EARLY MENTAL HEALTH STRUGGLES

[72] At a very young age, the child began to exhibit signs of anxiety, and over time she began exhibiting serious mental health issues. Both parents testified extensively about this although, as previously noted, minimal third-party evidence was produced at trial.

[73] According to the mother, as early as age seven or eight, when the child was stressed or anxious, she would pick at her skin or pull at her hair. By the time she was 12 and in grade seven and grade eight, the hair pulling worsened to the point the child would have noticeable bald spots. As early as grade six/grade seven, the child began cutting herself. At first it was done on the ankles, the child explaining the cuts as having caught her ankles in bicycle spokes. This progressed to cutting her arms in multiple locations. The mother explained that this was a form of release from anxiety.

[74] The father also recalled at age nine the child would dig her nails into her arms and would clench, but not really pull, her hair. He was also aware that the hair pulling worsened, resulting in bald spots on her head, and later there was cutting done on her arms.

[75] Both parents agreed that in 2016, when the child was in grade four, the child seemed to be noticeably struggling with school and with friends. The father emphasized that she also demonstrated a lack of focus and impulsive behaviour. It was the father who was proactive in taking these concerns to the child’s doctor, Dr. T. Murray, in October 2016. He had the child in his care while the mother and G.M. were away on vacation. The doctor suspected that the child might have Attention-Deficit Hyperactivity Disorder (“ADHD”) and provided the father with questionnaires to be completed by the parents and the child’s teacher.

[76] At the next meeting with Dr. Murray, both parents were present. There is some dispute as to the date of this meeting, the mother believing that it took place in early November 2016, (immediately after returning from her vacation) and the father recalling it occurred in January 2017. There is no dispute as to what transpired while with the doctor. The doctor believed that the child had ADHD and recommended that S. begin a low dose of Concerta. The father agreed with this. The mother was reluctant to begin medicating the child until a full evaluation was done.

[77] According to the father, when they left the doctor’s office, he expressed his frustration to the mother saying, “I hope you’re glad you are making your daughter suffer. You are standing in the way of getting her help, you’re a shitty parent.” He stressed that he was not screaming at the mother. He was just telling her how he felt.

[78] The mother confirmed that the father did say those words to her but recalled that he was very angry and, although he was not screaming, he was talking loudly and aggressively when he also said, “How dare you? I set this up, and invited you to come to this appointment. I could have had her medicated without you.” She noted that she was embarrassed as this exchange took place in the doctor’s waiting room which was full of patients.

[79] Dr. Murray referred the parents to West Niagara Psychology Centre where a psychological assessment was conducted by Dr. Anna Piguol. As stated in the report dated May 10, 2017, the purpose of the assessment was to “understand [S.’s] cognitive, academic and social-emotional functioning” and to address concerns noted “regarding difficulties with academic work, concentration and emotional functioning.” Results of the psychological testing showed that the child had learning disorders in written expression and math, ADHD, and Generalized Anxiety Disorder. The report was shared with the parents and was also to be shared with the child’s teachers and school personnel and health care providers. The parents were encouraged to obtain tutoring in math and writing for the child.

[80] The assessment also disclosed reports from the parents that the child had been displaying inappropriate sexualized behaviour, for which individual therapy was recommended. Once again, the parents disagreed about the possible source of this behaviour and how they should handle it.

[81] The father recalled an incident in the summer of 2014 as the first time that he saw S. display sexualized behaviour. They were playing with LEGO building a house, and the child took two LEGO figures and put them on top of one another in the bed. When he asked what she was doing, she replied “sexing” and giggled. The child could not explain what the word meant.

[82] According to the father, he immediately brought this incident to mother’s attention, and she just blew it off. The father also indicated that the child had disclosed to him that she was sharing a bed with a boy at the mother’s residence around the same time.

[83] The mother recalled that the father had raised an incident with her because the child had referenced “sexing”. However, it was her recollection that this occurred in the winter of 2014. At the time, she was living with her employer and friend, Amy. S. shared a bedroom with Amy’s daughter while Amy’s son had his own room. On occasion, all three children would have a “sleepover” in one room, but the door was open and there was nothing inappropriate taking place. The mother denied that she blew off this event, rather she expressed that it was normal for children to question such things.

[84] The father testified that in March 2015 there was another incident but from a review of the evidence he did not provide any details of what exactly had transpired. In response to this, he purchased an educational book for the child with the intention of her learning about human bodies and sex. The book he claimed he purchased was titled “What’s The Big Secret? Talking about Sex with Girls and Boys” for ages eight and up. He explained that he purchased it on Amazon on March 19, 2015, and he produced an invoice. He sent the book with the child to the mother’s home so that she could review it with the child. Instead, the mother’s reply was that the child was too young for this.

[85] According to the mother, she was not advised of another sexualized behaviour incident prior to the child bringing home a book about sex education. The book produced by the mother was titled “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health.” The cover indicated that it was intended for children ages ten and up. The mother did express to the father that it was not age appropriate and she did not review it with the child. She was adamant that no other sex education books had been given to her by the father.

[86] The next incident took place around June 2016. The father explained that he and the child were moving in with his girlfriend at that time, K.G. She had a daughter, O., who was one year younger than S., and a three-year-old son, P. During the move, he came upstairs and saw P. in a bedroom closet with his pants down. Both girls were in the bedroom, several feet away, laughing at him. The father and K.G. informed the mother about this incident. However, it was the mother’s recollection that the girls had been touching P., which was vehemently denied by the father. Both parents individually had a discussion with the child about private parts being private and that such behaviour was inappropriate. The mother testified that it was after this incident that she began looking for a counsellor for the child, eventually hiring Kathryn Walsh in the fall of 2016.

[87] The next incident that the mother learned about was during the psychological assessment process in spring 2017. The father explained that on a Sunday afternoon in late February 2017, he went upstairs to check on the girls. He observed them both sitting on the top bunk bed, sitting feet to feet with a blanket over their laps. Their pants were pulled down but were not completely removed. When he asked what they were doing, they both looked shocked and hurried to pull up their pants. He went downstairs and told K.G. As he explained it, she took it very hard. K.G. accused S. of raping her daughter and within ten minutes she left the home with her children. The father was advised to be out of the home by the following day. K.G. contacted Family and Children’s Services Niagara (“FACS”) and an investigation ensued, with both parents being contacted by FACS.

[88] The mother stated that she did not fully understand the magnitude of the child’s sexual behaviours until the FACS investigation in 2017. She also stated that until hearing the father’s testimony at trial, she was not previously aware that K.G. had accused S. of having raped her daughter, O.

[89] The mother testified she had become aware that the child had found a pornographic magazine at the father’s apartment and the child had looked at it several times. The child found this material sometime before the father and S. moved into K.G.’s home in June 2016. However, the mother’s evidence about when she learned about this and from who was unclear. Under cross-examination, the father was able to demonstrate the mother’s various accounts to others: to Dr. Pigoul, the mother hypothesized the child’s behaviour being attributable to finding pornographic material in the father’s dresser; it was during the FACS investigation the mother became aware of this from a disclosure from the child; and the father had confided to the mother about the child finding the magazine, as the mother recalled being very upset with him for being so careless to have such material so accessible. In the end, the mother testified that she was “fairly certain” that she learned of the pornographic material from the child and then later the father admitted to this having occurred.

[90] When the father was cross-examined about the pornography, he acknowledged that he had one pornographic magazine kept at the bottom of his sock drawer. However, when confirming that neither the drawer nor the door to the bedroom were locked, he then expressed that S. never went into his bedroom on her own and that they never hung out in his bedroom, always playing in the child’s room or in the rec room. He had considerable difficulty with any suggestion that he was at fault for the child finding the magazine or that this event could have played any role in the child’s sexualized behaviour.

MENTAL HEALTH COUNSELLORS/THERAPISTS

[91] The child has been involved with several therapists since 2016.

(i) Kathryn Walsh

[92] According to the mother, shortly after the “sexual” incident with P. in June 2016, she conducted research to find a therapist for the child. This led the mother to retain Kathryn Walsh (“Kathryn”), a family therapist. S. was involved with her for almost three years (fall 2016 until fall 2019). The child expressed that she was comfortable speaking with Kathryn. From the mother’s perspective, this was a safe place for the child to talk to someone in private and about either parent.

[93] The mother testified that the parents did attend one session together, but the father threatened to hit the mother and Kathryn asked him to leave. The father did not speak of this nor dispute same.

[94] The father had very little positive to say about Kathryn. He described an incident just before the long weekend in May 2017. He had noticed in the journal that the child was upset about not being able to spend that weekend with her father. The father expressed that, as both he and the child had concerns about how to “deal with mom”, he scheduled an appointment with Kathryn, S. and himself for Friday after school. His intention was to try to get help to deal the child’s upset about losing time with her father and help for himself to not bad mouth the mother about this when talking to S. Within two hours of having made the phone call, Kathryn called back and told him to come by himself to the session. He believed that the mother had cancelled the session, ostensibly as she was taking the child camping that weekend. At this appointment, he expressed to Kathryn that something dire was happening, specifically that the mother was engaging in alienation.

[95] The father expressed that Kathryn’s actions in cancelling the three-way meeting caused him to completely lose trust in her, even before he met her face to face. He strongly believed that his privacy had been invaded by the mother being allowed to intervene in cancelling this appointment.

[96] Despite his feelings of mistrust of Kathryn, he felt that he had no ability to take S. to another therapist, as the child expressed feeling very comfortable with her. When asked specifically, he agreed that the child had never complained to him about Kathryn.

[97] Under cross-examination, the father confirmed that he did ask the child what kind of stuff was discussed with Kathryn, to which the child replied, “just fun stuff.” Although initially he indicated that he never expressed his opinion about Kathryn to the child, he later confirmed that he may have told S. that he did not trust Kathryn after their appointment was cancelled and he may have said that she was not professional in how she dealt with clients. He denied that such comments by him would have had a negative impact on the child or that it might deter the child from discussing certain topics with her father.

(ii) Donna Tyler

[98] The next counsellor that the child was involved with was Donna Tyler (“Donna”).

[99] As is discussed in more detail below, S. was hospitalized at McMaster Hospital in May 2021 after disclosing to her father prior suicide attempts and suicidal ideation. One of the recommendations when she was discharged in June 2021 had been for the child to be involved in dialectical behavioural therapy (“DBT”). This was offered through Pathstone Mental Health by Donna. Due to COVID, the relationship began online and, although it continued for multiple sessions, the mother stated that the child never felt overly comfortable with nor did she have a strong connection with the counsellor.

[100] The discharge report of Donna dated February 1, 2022 confirmed that the child was referred to the Family Intervention Program to work on treatment goals of reducing hair pulling and depressive/anxious symptoms. A total of 15 sessions took place, the last one being on November 17, 2021. The parents were notified on October 20, 2021 that the child was reporting that the treatment goals had been met, she had no further concerns to discuss in therapy and, as such, the file would be closed.

[101] The father’s position was that there had been some improvement in the child’s mental health while she was participating in counselling with Donna but only for as long as he continued to have a relationship with the child. However, after the father-daughter relationship ended in September 2021, it was apparent from the child’s attempted suicide in November 2021 that she had not improved at all. According to the father, the sessions with Donna were ended by the mother so that she could get the child into treatment with Rita Vesco, who then refused to have any input from the father. He believed that Donna had not been made aware of the complaint to FACS regarding inappropriate sexual touching, nor had she been made aware of the suicide attempt in November 2021, otherwise she would not have discharged S. from treatment.

(iii) Rita Vesco

[102] In 2021, the mother did further research on DBT therapists and, in August 2021, the child began therapy with Rita Vesco (“Rita”) at Abma Counselling Services. Unlike the therapy at Pathstone Mental Health which was free of charge, Rita charged an hourly rate of $125 an hour and this increased to $135 per hour in 2022. The father admitted that he was advised by the mother that a new therapist had been retained but, as confirmed by the mother, she did not discuss this with the father in advance of doing so. The mother explained that any previous attempts to discuss any issues concerning the child always ended with the father berating her about her opinions and name calling, and she wanted to avoid being subjected to this.

[103] When this therapy first began, there were still visits taking place between the father and the child. The mother did ask S. if she wanted her father to participate in this counselling, but the child replied, “I was traumatized from therapy with my father in the past, I would never do therapy with [him] again.” The child also made it clear to her mother that she did not want information about this new therapist to be divulged to the father.

[104] This therapeutic relationship continued to the date of trial and is ongoing. There are standing appointments that occur bi-weekly, but more sessions are scheduled as needed, although sometimes they take place less often with vacations.

[105] In addition to DBT therapy, the child also has a standing appointment with her family physician on the week she does not meet with Rita. The doctor’s name was not disclosed by the mother, but the father acknowledged knowing that the child had been seeing Dr. Lukings since October 2021. Although it had been suggested by McMaster Hospital that the child get a new doctor, rather than having her seen by a pediatrician, the mother had unilaterally switched the child’s family doctor from Dr. Murray (who is the father’s physician) to Dr. Lukings, who is also the mother’s current family doctor. The mother confirmed that the child did not want her medical information shared with the father. The father confirmed that he has attempted to obtain information about S. from Dr. Lukings’ office but has been denied.

[106] In June 2022, at one of the regular bi-weekly sessions with Dr. Lukings, the child disclosed she was having suicidal thoughts. The mother was directed to take the child immediately to the hospital. The child told her mother that she did not want her father to be told. However, the father learned of this contrary to the child’s wishes. The child’s tablet had remained at the father’s home since the last break began in September 2021. As the child was still logged into her social media accounts, when the child communicated with her best friend that she was scared about going to the hospital, the father read these private messages. He did not see this as an invasion of the child’s privacy as the tablet had been there more than eight months. He seemed more concerned with a conversation between the child and her friend discussing that she had COVID but had been told by the mother to not tell anyone.

[107] Given the position taken by the mother’s counsel and OCL counsel on behalf of the child, there was no other evidence made available to the court regarding the child’s mental health treatment.

SELF-HARMING BEHAVIOUR

[108] Despite the ongoing involvement of professionals, both parents did speak about the child’s behaviours of cutting and hair pulling increasing over time, but they disagreed about the reason for this. The mother testified that in 2018 or 2019, she discovered that S. had been cutting herself. S. explained that L.A.’s daughter had shown her how to do this. Both girls had begun to do this in reaction to constant fighting between the father and L.A. The mother explained that later on, once the parents had known about the cutting and it had been disclosed to the therapist, S. seemed to be freer to do it as a release from anxiety. However, she explained that when she does observe S. wearing sweats or baggy clothing for an extended period, she will ask S. if there is anything to be concerned about. If S. says nothing is wrong, the mother might request to do a body check to assess the amount of cutting being done. Sometimes S. will allow the check right away; other times, if she has been cutting, S. might say not right now and then a day later will allow her mother to do a body check. The mother also explained that in 2020, the hair pulling became extreme, and it would be necessary for the mother to use eye shadow that matched S.’s hair colour to fill in gaps that were forming.

[109] The father expressed that after the initial break in February 2020, when the child came for her next visit, she arrived wearing a hat and baggy clothing. It took awhile for S. to be persuaded by L.A. to take her hat off and to remove her sweatshirt. They were shocked by the hair loss and the scars on her body from cutting herself. In his mind, the self-harm had increased because of all the breaks in their relationship with no justification whatsoever.

[110] As the court did not hear from L.A., there was no evidence to refute the mother’s account of the child’s explanation for cutting and when it intensified.

SUICIDAL IDEATION AND SUICIDE ATTEMPTS

[111] The testimony of the parents was consistent regarding the child having expressed suicidal ideation and making suicide attempts during 2021, but there were many discrepancies in their reporting of same.

[112] According to the father, on May 15, 2021, the child disclosed to him two prior attempts at suicide. The first took place at the mother’s home in January 2021. There was no evidence proffered about this. The second incident took place at the father’s home in February 2021. He detailed that this event occurred just as the schools had reopened. The child was nervous and excited about a return to school. He recalled hearing her up in the night but not being concerned as she has always had difficulty sleeping. She seemed tired the next morning and said she did not want to go to school, but he convinced her to go. About ten minutes after dropping her off, the school secretary called to advise that the child had collapsed outside of school and was unable to move. When the father arrived, the child was down on her knees and kept saying that she could not walk. He thought she was just being overly dramatic, and he took her home. At the time, she did not tell anyone that she had taken about 20 expired heartburn pills that were in a junk drawer.

[113] The father expressed that after he learned about the February incident on May 15, 2021, he was devastated. He was unable to sleep that night, worried that the child might try to commit suicide again. He was so afraid that he decided to take her to McMaster Hospital. The child was admitted to a general room for one week until space became available in the children’s mental health unit where she remained for about two weeks.

[114] During the hospital stay, the father’s evidence was that he stayed with the child everyday. Later, he indicated that once she had been admitted to the children’s mental health ward, it had been agreed that the parents would visit on alternate days. He also noted that this was necessary due to COVID rules which only allowed visitors from the same household to attend on any day.

[115] The mother’s testimony suggested a different version of events leading to this visitation arrangement. The mother was advised about the child’s hospitalization a few days after her admission (according to the father, S. did not want her mother to be told, but his partner L.A. persuaded her to allow the father to tell her). The mother immediately attended at McMaster Hospital. When she arrived, the father began with the usual name calling (lazy, fat, piece of shit) and blaming the mother for the child’s mental health state. He was very upset, expressed to the mother that he could not stand to be in the same room with her, then insisted that they had to visit their daughter on alternate days. It was not due to COVID protocol, but the father’s disdain of the mother’s presence. The mother expressed that throughout this time the father talked to her terribly and although the words used were the same as before, given the severity of what was happening with S., the words were much more hurtful.

[116] The mother confirmed that the parents were required to meet with the medical team prior to S. being discharged. The mother raised the issue of S.’s friend E. During the hospital stay, the mother had learned that, while S. had been living with the father, S. had been hanging out with a troubled teen, E., who had a problematic home life (drugs, physical abuse, and alcohol). E.’s older sister had recently died by suicide. The mother also learned that, prior to the hospitalization, the father had considered taking this friend in to live with them.

[117] Although it had been recommended by McMaster Hospital that S. should take some time away from E. during her recovery healing process, the father did not follow this recommendation. The mother suggested that the father allowed S. and E. to spend time together shortly after S. was released from hospital. The father explained this was only done to get some of S.’s belongings returned.

[118] Although the child was not to be left alone with E., the mother drove by following the child’s return to her father and observed the two girls walking alone down the street. During cross-examination of the mother, the father chastised her for not doing anything when she observed this and for leaving S. in a dangerous situation. The mother explained that the reason she did not stop was that S. had been clear she wanted a break from seeing the mother, and this was not so much a safety issue as being against medical recommendations at McMaster Hospital. She did not raise this incident with the father as it would have led to a confrontation.

[119] The father provided the McMaster Hospital discharge plan dated June 4, 2021, which was made an exhibit. Although mother’s counsel and OCL counsel objected on the basis that the child did not want her health information shared with her father, the court determined that it should be accepted. Not only was the father already aware of its contents, but it was imperative for the court have relevant information concerning the child’s mental health in order to make a determination about the parenting issues in the child’s best interests.

[120] S. was discharged on June 4, 2021 with the following diagnoses: Generalized Anxiety disorder; ADHD – combined presentations; Learning Disorder; and Borderline Personality traits.

[121] The child was to continue with out-patient therapy being conducted virtually with Donna Tyler at Pathstone Mental Health. She was to be followed for out-patient psychiatry with Dr. Barbara Ann Yu-Siao. Communication was to take place with the school social worker to assist with the child’s transition back to school and there was to be contact with school administration to assign a point person to provide support to the child, when required.

[122] A referral was made to Contact Niagara for the child to be connected to ongoing out-patient therapy. The parents were registered separately for a virtual caregiver support group. It was unclear what the purpose of this group was, although the mother did confirm a strong recommendation had been made for the parents to obtain help in improving their ability to co-parent S. There was no evidence provided about whether this was done.

[123] The second suicide attempt by S. occurred in November 2021. During a regular session with the child’s therapist, Rita, the mother was called into the office shortly after the session had started. The therapist advised that the child had disclosed something of a sexual nature involving the father and she was obligated to report it to FACS. The child had expressed to the therapist that she did not want her father to know about this. FACS had indicated that they would be in contact with the father the following week to conduct an investigation into the allegations.

[124] The previous week, there had been a psychiatrist appointment with Dr. Yu-Siao that normally the father would have participated in. When he contacted the office to find out why he had not been included in the call, someone inadvertently told him that it was due to an ongoing FACS investigation. He then began incessantly texting the mother asking, “What the hell is going on?”

[125] The mother and the child were concerned about the father’s reaction to this disclosure and so they travelled to the Kitchener-Waterloo area to be with the mother’s family. The child had gone upstairs to get ready for bed and overheard the mother explain what had happened to the aunt. Unbeknownst to the mother, the child had taken a bunch of pills that were in their travel bags. The child ingested not only her own medication, but also some of the mother’s medication. S. came downstairs and lay on the kitchen floor. At first, the mother thought she was playing and being silly, but when she saw her pupils were dilated, she rushed her to the hospital. They remained at the emergency department for a few hours, but the child was not admitted, and the mother was advised to follow up with the child’s family doctor.

[126] The mother readily acknowledged that it had been recommended by McMaster Hospital that all medication should be kept in a lock box and that it was wrong to have left the medication so easily accessible to the child.

[127] The next week, the child was taken to the Kristen French Child Advocacy Centre so that a joint interview could be conducted with the Niagara Regional Police and FACS. A letter from FACS dated November 26, 2021 was produced by the father. This letter indicated that the child protection investigation referred to FACS in October 2021 regarding allegations of questionable sexual activity towards his daughter had not been verified and that the file would be closed.

[128] The father was adamant that he had never touched or spoken to his daughter in a sexual way. He indicated he might have touched her butt or thigh in trying to get her out of bed, but that was the extent of any touching that occurred. He submitted that the FACS letter exonerated him from any sexual misconduct. It also corroborated his theory about the mother’s continued efforts to alienate him by having the child make false allegations to her counsellor, to the police and FACS, and demonstrated the lengths to which the mother would go to destroy his relationship with S. It further explained the child’s suicide attempt in November 2021. S. knew that she would be caught in a lie about her father, and she would have felt horrible for having done that.

[129] The mother testified that following receipt of the FACS letter, the father continually texted the child even though she had made it clear that she did not want contact from him. The mother indicated that the comments were not threatening in nature but changed from telling the child that she was being brainwashed by her mother and that it had been the mother’s fault for their estrangement to then stating on SnapChat or Instagram that “living life without you is not worth it”.

[130] A general occurrence report dated November 30, 2021 was filed. The mother confirmed the reason for contacting the police was to get the father to stop contacting S. As she explained, the child was both afraid of what the father might do in these continuing communications and scared for her father and what he might do to himself. The police conducted a welfare check and directed the father to discontinue this unwanted communication.

[131] As detailed above, the next known incident of suicidal ideation occurred at a scheduled bi-weekly visit with Dr. Lukings, where the child disclosed she had cut herself at school and was experiencing suicidal thoughts. The mother took the child to the hospital for treatment.

[132] As to other suicide attempts or suicidal ideation, the father suggested that there had been an earlier expression of suicide in 2018. Both parents spoke of an event that took place in October 2018 when the child was in grade six at Parnall Public School.

[133] According to the mother, some classmates disclosed to the principal that S. and a friend were planning to run away from school. The mother had been contacted by the school principal, Rob McLean (“Mr. McLean”), who suggested that she follow up with Contact Niagara to be referred to services available through Pathstone Mental Health. The mother testified that she attended at Pathstone Mental Health that same day. The mother did not disclose this incident to the father, given the highly conflicted relationship with the father. Instead, she asked Mr. McLean, to advise him and he did so. The father expressed that the mother should have contacted him to discuss the situation, rather than having to learn of it from the principal.

[134] The mother testified that the child later disclosed to her this had only been a threat to run away, and she had never thought about committing suicide until much later with the court proceedings and multiple meetings with the OCL. On cross-examination by the father, he questioned how the child could have been anxious about meeting with the OCL as the OCL was not appointed until late in 2018. The father was adamant that he had been advised that there had been a suicide threat made by S. Unfortunately, the one person who could have shed light on this fact, Mr. McLean, was not called as a witness.

BREAKS IN CHILD’S RELATIONSHIP WITH FATHER AND RECONCILIATION COUNSELLING

[135] The mother testified that the child took multiple breaks from seeing her father beginning in February 2020. When asked what led to the first break, she explained that the child had a cheer competition on the Saturday of the January 21 weekend. S. had asked to stay at the mother’s house so that she could help get her ready for the competition. They had also discussed going to the Painted Turtle on the Friday evening. When the child texted the father that she would not be coming to his place on the weekend, he “flew off the handle”. He insisted that she had to go to his house and he wanted to speak with S. The child then called him from the mother’s cell phone, but when he started to yell at her, the child hung up the phone. The father continued to text the child, advising that he would be at the school on the Friday so that she could “tell him to his face” that she did not want to spend the weekend with him. According to the mother, this caused significant anxiety for the child.

[136] The father’s version was that he had texted the mother on Thursday evening to confirm the weekend plans and she advised that there was an outing (the Painted Turtle) planned for Friday evening. The father insisted that he would take the child to this event, as this was his scheduled time. The parents continued to argue about this over text. The father requested to hear it from the child directly and then, out of the blue, his daughter called him on her mother’s cell phone advising that she wanted to be with the mother on Friday and then the call was dropped. He confirmed by text to the mother that he would be at the school on Friday.

[137] The mother testified that she had contacted Mr. McLean to advise him of the situation and the child’s worried state. They made a plan for that day. One part of the plan was that as S. had a test, arrangements were made for her to write it in a resource room. The other part of the plan was that the mother would come to the school ten minutes before the end of school bell and the principal would make himself available at the end of the day to deal with any conflict. After waiting in the school foyer with the principal, the mother went to retrieve the child from her classroom and the father arrived shortly afterwards.

[138] As the mother described it, the child held tightly onto the mother’s arm as they walked together down the hall with the child expressing that she was scared. The father came up to them and walked on the other side of the child, whispering in her ear. They had to walk single file in between the cars as they made their way to the mother’s car in the school parking lot. The child got into the backseat on the driver’s side of the car. The father stepped in front of mother, preventing her from getting into the car, saying loudly, “Cut the shit [S.]. This is fucking ridiculous.” The mother asked him repeatedly to move, and he only did so after she threatened to call the police. As soon as the mother was able to get into the car, the child burst into tears. The father then immediately and repeatedly began calling and texting the mother and the child, but they did not respond. The mother explained she and the child were emotionally exhausted afterward, and she could not recall whether they had gone to the Painted Turtle as planned.

[139] The father’s description of this event was that the mother had gone to the school early, pulling the child from class before the dismissal bell. He explained that the mother and child came down the hallway, with the mother holding the child close to her, acting like she was the child’s bodyguard. As the mother was whispering in the child’s ear, he walked along with them, getting into the child’s other ear saying, “let’s hang out”, “you didn’t tell me”, “you didn’t give me notice” and “this isn’t right”. At the car, after the child had gotten into the backseat and with his back to the car, with the windows closed, he said to the mother in a quiet voice, “You are the absolute worst co-parent; you are such a piece of shit”. He expressed that there was absolutely no way that the child could hear anything that he had said to the mother. He then mouthed “I love you” to the child and she reciprocated. He acknowledged that he was frustrated by the mother’s actions, but in his mind, there was no scene. Despite requesting that the mother have the child call him and sending texts to the child, he got no response that evening.

[140] The father disputed that he had embarrassed the child by attending at the school. He noted that the following day he went to the cheer competition along with his mother, D.D., and his girlfriend, L.A. He recalled that the child was cheerful and happy to see them, and she was excited to show off her makeup, hair and her cheer performance. Although the child did leave the event with the mother, it was not because the child was upset with him, but so the mother and child could leave early Sunday morning to pick up a new puppy from Barrie. He did ask to have the child back for Sunday dinner, but he got no response from either the mother or the child.

[141] The following weekend, the father picked up the child as usual on Friday, January 28, 2020. That evening, when S. tried on the previous year’s bathing suit, it was evident that she had outgrown her old suit and it was too low in the front. The father admitted that he might have made a comment to the effect of “your boobs have gotten bigger, we need to get you a new bathing suit”. To his recollection, the child was not upset when he said this. The next day, the child and L.A. went shopping to purchase a new bathing suit. Unexpectedly, rather than staying over Saturday night, the child asked to go back to the mother’s home as she was now allowed to babysit her brother, M.M. Although the father was upset that he had no notice of the change, he allowed this to happen. He acknowledged that the mother did agree that the child could return on Sunday morning to attend a birthday breakfast with L.A.’s daughter, go to a matinee and have Sunday dinner with him.

[142] As far as the father was aware, he and the child were on good terms when she left his home that Sunday evening. In fact, that was the last time that they would speak for a seven-week period, as without any reason the child was saying she did not want to see him at all.

[143] At first, the father was hopeful that the mother was really trying to get S. to change her mind, but no visits took place. He thought that perhaps if the child saw him she would change her tune, so at one point he jumped in the car and drove to the mother’s house. The child came to the door looking mopey and upset. Without looking him in the eye and in a monotone voice she told him, “I can’t see you”. The father testified that he was devastated.

[144] The child then sent a letter to her father which was filed as an exhibit at trial. This letter dated February 27, 2020 read:

Dear DaD,

I have thought about what i want. i want to stay at my moms for a while because i am always happy when i am there. I wrote this letter myself nobody mad me write this letter. I just want to stay at my moms for a while I don’t know how long just for a while. I will write you back when i want to. insted of texting or seeing you why don’t we write letters to each other. Please don’t text just write me.

Love you dad [sic]

• [S.]

[145] From the father’s view, this letter coming three and a half weeks after the school event caught him totally off guard. To him, the wording sounded forced, as if someone did make the child write the letter. The father and daughter did write letters back and forth over the next seven weeks and eventually a reconciliation did take place and a visit took place on Good Friday of 2020.

[146] Prior to that visit taking place, at a settlement conference held on March 11, 2020, the parents consented to an order that the parties and child would participate in reconciliation counselling with Connect Family Solutions (“CFS”), using the services of Gillian Sheldrick (“Gillian”). The father confirmed in cross-examination that he was not in favour of this counselling. In his view, it was clear that “something fishy” was going on, that his daughter was essentially being turned against him by the mother, and there was absolutely no reason that the child should have wanted a break from her father. However, after being questioned by OCL counsel, he agreed that to be able to see his daughter again and to continue to play an active role in his daughter’s life he did ultimately agree to participate in reconciliation counselling.

[147] The consent order confirmed that the cost of reconciliation counselling would be split between the parents, with the father to pay 69 percent and the mother to pay 31 percent.

[148] The father produced the contract with CFS confirming the initial retainer installment was $2,075, with each parent to maintain a retainer of $300, being two hours of reconciliation services. The father’s recollection was that after the initial installment, the parents were required to top up the retainer by $300 or $400 maybe three times. In his estimation, he paid approximately $2,600 or $2,700 in total.

[149] According to the mother, the family was involved with Gillian from March 2020 to fall 2021. She recalled signing two retainer agreements and having paid close to $5,000 for reconciliation services. For the early breaks in the child-father relationship, there were consecutive appointments, but later sessions were held on an as-needed basis.

[150] The mother confirmed meeting privately with Gillian to express her concerns that S. was unable to stand up for herself during disagreements with the father, as well as concerns about the father’s anger. The mother believed that these issues contributed to the child pulling away from him. However, she did support the goal of the father and child repairing their relationship that took into consideration the child’s mental health issues.

[151] Over the next year and a half, the parties engaged the services of CFS multiple times. Neither party was able to provide the specifics of these visits, such as dates, duration, or the reason for the session. According to the mother, there were “so many times” that S. wanted to take a break from seeing her father. In her estimate, this occurred six or seven times. The mother did not always ask the reason, nor did she always have details about the issue when requesting a session be set up with Gillian.

[152] In his evidence, the father was able to provide more details, recalling:

a. Regarding the first break, the father indicated that through letters exchanged with the child, they had essentially reconciled by the time he had his first Zoom session with Gillian. She recommended that he keep things simple and just enjoy the time with his daughter. The visit was great, it felt like the child had never been gone and their relationship “went right back to normal.” This was followed up with a three-way meeting.

b. In May or June 2020, the child wanted a break from spending time with him, but there was no reasoning behind it. The father reached out to Gillian and a three-way Zoom meeting was held after which the child was willing to end the break and they re-established their relationship.

c. At the end of July leading into the long weekend in August 2020, L.A. had taken the children away to a cottage. The father did not go with them. L.A. returned home from the trip a day early (on Saturday) so that S. could enjoy the balance of the long weekend with her father. As he explained it, he had not seen the child for two weeks because the previous week she had been away camping with her mother. Just before arriving home in Niagara Falls, L.A. told him that S. wanted to go back to her mother’s house rather than stay at the father’s. He advised how totally inappropriate it was for the mother to have arranged a sleepover with the child’s friend on his scheduled time. Upon arriving home, S. raced upstairs to pack her bags to go to her mother’s house. The father was excited to see his daughter after a two-week absence, but the child seemed unconcerned about missing time with him. He admitted that he was a little upset about this and that he might have vented his feelings to L.A. about how these repeated last-minute encroachments on his time by the mother were damaging his relationship with his daughter. The child must have overheard some of the conversation and took offence to what the father had said about her mother. At first, he did not recall what he said, but upon questioning by the court he admitted that he probably called her a bitch. He explained that he was blowing off steam because he was so frustrated by the mother’s actions. Following this, he was advised by the mother that the child did not want to come back and there was another break.

According to the mother, S. and her friend had been communicating with one another. They had been friends since kindergarten. The girls’ mothers had also been checking schedules and, as this was going to be the only weekend during the summer that would work for a sleepover, S. wanted to spend time with her friend.

d. S. and her father share a birthday in August. The father expressed disappointment in 2020 that they were once again not going to be able to spend their shared birthday together as the child would be camping with her mother and that family. It had been four or five years since they had spent their actual birthday together. He might get a phone call on the day, but not always. This was “a little disheartening”. An in-office three-way meeting was arranged with Gillian, as the child was scared of the father’s potential reaction to the child not being able to spend that day with him. Gillian was able to help them plan this event by picking a day or an afternoon close to the birthday. As the father described it, “it was easy peasy. We were able to squash that worry of [S.]’s, and we hung out on another day after [the birthday].”

The mother produced an email dated August 11, 2020 that she had received from Gillian. The entire email is produced below, as it illustrates the dynamics at play in these sessions. Rather than it being “easy peasy”, the counsellor describes the session as being a “tough” session for the child, largely due to the father’s conduct in not handling his frustrations. It also confirmed how difficult it was for the child to express her opinion because of a concern as to how the father will react.

From: Gillian Sheldrick

Date: August 11, 2020

To: [S.B.]

Subject: Yesterday’s Session.

Good morning [S.B.].

I think it is fair to say that yesterday’s session was a tough session for [S.]. [J.R.D.] was quite frustrated throughout the session and therefore, for the first time, I was able to see the behaviour that he demonstrates that you and [S.] have described to me. I pointed out dad’s behaviour in the session a number of times, validated [S.]’s feelings around this (and that she understandably shuts down), and offered suggestions on different ways that dad can manage his frustration more appropriately. I was very proud of [S.] for telling dad at one point that she is afraid to tell him things because of how he will react. This was the first time I saw her voice her opinion/concerns without prompting from me.

At the end of the session, there was some discussion around [S.] spending some time with dad on her birthday (not the whole day or weekend, maybe a couple hours only), and although she did appear open to this idea at first, she did appear to leave the session quite anxious. Can you let me know how she is doing?

After [S.] left, I discussed the following with [J.R.D.]:

• I reminded him to keep his frustration in check, as this is what is contributing to [S.] shutting down and then not wanting see him [sic] or discuss her concerns with him (as she does not know how he will react). I provided [J.R.D.] with some suggestions on how to better manage himself and he did appear to leave the session in a different frame of mind.

• I talked to [J.R.D.] about the developmental stage of where [S.] is at and being sensitive to this – i.e. being with friends is most likely more important than being with mom or dad.

• I suggested that [J.R.D.] apologize for his behaviour (which he did via iMessage last night)

• I suggested that he propose to [S.] that they spend time together for her birthday on another day than her actual birthday, in the event that her anxiety was caused by the fact she already had plans with a friend or you and now she is worried about how dad will react if she can not actually spend time with him on the actual day. I am also aware that it is also his birthday and therefore [S.]’s anxiety could have been a result of how dad will react if she does not spend his birthday with him either. [J.R.D.] did send an iMessage making the request that the [sic] spend time together on an alternative day to celebrate.

Please let me know if you have any question, concerns, or feedback. Can you check in with [S.] that she received these messages last night? It would be helpful if you could point out the positive of the apology and him being flexible with birthday plans.

I will see [S.] on August 24th at 3:00 p.m. for her next session with dad.

Warm regards,

When questioned about the counsellor’s comments and what had happened at this session, the father denied that he was angry, although he admitted to having been frustrated. The situation being addressed (in addition to the birthday) was that the family dog, Dakota, had been bit by a tick and died a few days later. His efforts to reach S. and the mother asking them to come and say their final goodbyes to the dog were completely ignored. He was ghosted by them and was alone when the dog died. He was hurt and devastated by their failure to respond, and when he saw the child, he “wasn’t mad at her” but wanted an answer and indicated “my anxiety gets me kind of worked up and it seems like I’m angry but I’m just antsy waiting for an answer to something. I’ve been stuck on these thoughts all weekend and [it’s] not anger, just frustration”. When he was asked about the possibility that neither the child nor the mother responded to his text messages out of concern that he would become more escalated, he totally disagreed. He denied that his text messages were aggressive and suggested that their ghosting of him was far worse, and it was ignorant of them to do that.

e. Another break occurred in mid-October 2020. Initially, the father did not remember the circumstances that led to this, but later he recalled that it might have been around a disagreement about the mother not letting the child come to a long-standing Wednesday evening coffee time with the paternal family. He was unhappy that the mother was not going to allow the child to come, and he might have called the mother an idiot. The mother advised that the child had seen the text he sent and was asking for another break. The father indicated that this was a short break of less than two weeks. He called Gillian and she was able to get them in for a quick session. He recalled that on that occasion the counsellor asked him to write an apology letter to child, which he did. He indicated that there was a second time that he was asked to write an apology to S., and “both of those times it seemed to lift [her] spirits enough to want to reach back out” and attend a reconciliation meeting.

f. The father believed that there was one reconciliation counselling session involving the mother and child (between April 2021 and June 2021) during the time the child was staying with the father. The mother did not speak about this.

g. It is apparent that there were also session(s) in June 2021 as the father identified emails between him and Gillian and the mother dated June 15, 2021. In cross-examination, the father refused to admit that this showed the mother being pro-active in reaching out to the counsellor when a conflict arose between him and the child. He was adamant that it was not a conflict between him and the child, rather a situation created by the mother. The child had gone to visit her mother on the Saturday and ended up staying that night and Sunday night without notice to the father and without communication as to when the child would be returning. The child showed up at his door at 8:30 a.m. on Monday and as he wrote “I called [S.] out on not returning my texts (as this has been a [sic] issue for 2 years now!) I was hot, but not angry, not yelling, not throwing things…I went out back to calm and [the child] already had [mom] back to pick her up.” In his view, the mother only contacted the counsellor to save face, not to help deal with the situation.

h. Another session with the reconciliation counsellor took place in August 2021 in relation to the child being worried about the father’s reaction to not being able to spend their mutual birthday together. According to the father, it was a simple matter of choosing another day and that’s what they did.

i. The parents’ final involvement with Gillian occurred after an incident in early September 2021. On the evening of September 9, S. told her father about a party she wanted to attend on Saturday. The father replied, “no problem kiddo, I just need a time and a place”. On Friday, September 10, the mother took the child to a meeting with OCL counsel and the clinician, and then dropped her off at the father’s home. In his mind, instead of coming in like she was going to stay, S. was acting strangely, like she was waiting to leave again and was hiding something. She did eventually ease up and, after dinner and a walk, they began to watch a tv series that they had been watching together. When the child learned that L.A. and her father had gone ahead one episode, she had a meltdown, storming to her room. S. immediately contacted her mother and was on the phone/video chatting with the mother for the next two hours. The father kept texting the mother to hang up, but she continued to speak with the child. The next morning around 9:00 a.m., he was trying to get the child to get up, but she was refusing to wake up. He persisted in trying to get her up, but she was grouchy. She then said she had to leave to go to a party with her camping buddies but when the father said he would take her, rather than provide any details to her father, S. demanded to go back to her mother’s.

According to the mother, when she reminded S. that she had a meeting with the OCL on the Friday and that her father would take her, S. asked her mother to take her. The mother was not sure if she told the father about the change in plans. When he did find out, he accused the mother of doing this intentionally so that she could persuade S. what to tell the OCL. The mother confirmed that S. was very angry at the mother for taking her to the father’s after the OCL meeting. S. even tried to use the excuse that she had left her stuff at the mother’s house, but the father was texting the mother saying, “You’d better bring her now,” so the mother took her to her father’s directly from the OCL meeting. She reassured S. that she would see her the next day to go to the party. At some point after arriving at the father’s home, S. called her mother indicating she did not want to be there and begging her mother to pick her up. The mother did stay on the phone with her to calm her down and to get her to go to sleep. She confirmed that the father repeatedly texted her to get off the phone as it was his time with S. The next morning, the child did arrive back home earlier than usual, and she was adamantly stating, “I don’t want to go back there. Please don’t make me go back there”. The mother indicated that S. did not say what she was so upset about or why she did not want to return to her father’s.

Following this incident, the father reached out to Gillian by email and voicemail, but these went unanswered for eight days due to illness of the counsellor or someone in the office. Once someone finally returned his messages, it was confirmed that they would reach out to the mother. However, rather than setting up a reconciliation session, he was advised that the mother was refusing to pay her share of the fees and no session would be happening.

The mother agreed that she received a request to set up a reconciliation counselling session. Her response was set out in an email to the counsellor dated September 27, 2021:

Hi Gillian,

[S.] and dad have not talked for just over two weeks now. To my understanding there was not a large disagreement however his anxiousness has been building lately which effects his behaviour and parenting and [S.] is needing a break from that (this is what I have gathered from [S.]). I have pushed [S.] to reach out to dad but she is not doing so.

Unfortunately due to legal fees, private dbt therapy costs for [S.] (which I solely pay for out of pocket) and lack of child support I really cannot currently afford your services which is why I hadn’t reached out as I typically would.

I am really not sure how and what to do to move forward in this situation.

Regards,

[S.B.]

[153] The mother testified that she believed she told Gillian she would bring the child to reconciliation counselling (against the child’s wishes) if the father wanted to pay the entire cost of the counselling. However, she agreed that was not set out in the email. She did not recall whether she ever told the father that she would bring the child to counselling provided he paid the fees. The mother testified that when the father learned that the mother was refusing to pay her share of the fees, she received multiple nasty text messages where the father used profanities and called the mother horrible names.

[154] One would have expected that one of the parties would have called Gillian as a witness at trial. The mother explained the reason she did not call Gillian was that she was unable to afford the fees of a few thousand dollars to have the counsellor appear.

[155] It became clear why the father did not call Gillian. When asked how he responded to learning that the mother was not paying her share of the retainer, he advised that he hung up the phone and texted the mother to “call her out” for not continuing with reconciliation counselling. In his mind, this process had always seemed to work, and it was not an affordability issue but a means for the mother to break a “life-line” that had always brought the father and child back together.

[156] The other action that he took was to leave a review about Gillian’s services, which is set out below. He confirmed that the first review was left sometime in October 2021, and then he updated it in July 2022. He also confirmed the accuracy of the reviews which were made an exhibit.

Connect Family Solutions

[J.R.D.] (father’s name in full)

2 reviews

Gillian had no problem establishing reconciliation between my Daughter and I. But, no matter how anyone tries to justify their reasoning for cutting another parent out of their child’s life intentionally, it can never take away the fact that such an act is selfish, atrocious and abusive as they come.

Gillian was unwilling to address or assist with this – the actual issue. I no longer have any relation or communication with my Daughter.

Thanks for the help!

Update: July 2022

Hey Gillian, your neglect in seeing the manipulation and alienation has caused my little girl to take 3 attempts on her life over these past 10 months. All while wanting nothing to do with me – as her mother continues to warp everything. My little girl will end up taking her life before I get to hug her again. Thank [sic] for nothing, you fraud!

[157] In cross-examination by OCL counsel, the father disagreed that his review would likely have a significant negative economic impact on Gillian’s business, stating, “I don’t think so. It’s just my opinion of the services”.

[158] When asked, the father confirmed that the purpose of retaining CFS was to reconcile his relationship with his daughter. Throughout his testimony, he pointed to many successes, noting that “any time reconciliation was needed, we could reach out to Gillian and she made an appointment and that would get me and [the child] in the room and things would carry on as they always did. When we would be leaving the office, we would be smiling with a hug goodbye and a text or talk to you later. We just needed to be brought together and that was enough [for there to be a] reconciliation.” In his view, “Gillian wasn’t providing much of a service to put us back together other than the fact that she was a safe spot where we could both be together, and it would just kind of seem like we had never split in the first place.”

[159] While the father recalled that in some sessions (confirmed in the August 11, 2020 email) the counsellor did explain that it is typical behaviour for 14 and 15-year-old girls to want to spend time away from their parents, and did provide some tips on dealing with an adolescent girl, his complaint was that the counsellor refused to address the mother’s alienating behaviour. His concerns went unheard and as he explained, when he wrote the initial review, “I just felt hurt or, not betrayed, but just desolate by the fact that what I’m saying is not being acknowledged and I’m being told that this is typical behaviours when I’ve been explaining the alienation to Gillian since our initial meeting.” He continued in expressing his dissatisfaction with CFS, “I don't think it's typical behavior for a little girl to... try to kill herself three times and estrange herself from a parent for one year [with] whom she had the utmost beautiful relationship her entire life.”

[160] In cross-examination by mother’s counsel, he was asked whether he understood how denigrating his comments were toward the mother, but he stood by the comments. He was asked if he had considered how inappropriate and embarrassing this review would be for his daughter if one of her friends read what he disclosed about her mental health struggles. His reply was “I believe your client’s co-parenting skills have been completely inappropriate and abusive for the duration of this litigation.” He continued, “This is a review that people need to know this is happening. This is a parent and a child mentally, emotionally being ripped apart by an abusive narcissistic parent and she has been so deceiving with all sources of help that I’ve [been] either blackballed or gaslit by any source I’ve reached out to”.

[161] It was only later, when asked by OCL counsel whether he had considered removing the review, he agreed that since being asked by mother’s counsel about doing so he had been thinking about it. He now realized that by using his full name anyone who knew him could learn of his daughter’s difficulties. At the end of this exchange, the father confirmed that having now thought about it he would remove the post.

[162] The mother raised one other issue in relation to the breaks in S.’s relationship with her father. While it appeared that a break might have occurred for fairly insignificant reasons (to go to a party or sleepover, due to some minor disagreement, etcetera), the mother shared her observation that each time it happened it was massive for S. to have to deal with. The mother expressed that she did her best to be supportive of the relationship, making sure there was an opportunity for the child to talk about the situation and how the child was feeling with Rita.

FATHER’S ANGER

[163] The father expressed concern that he has been portrayed throughout these proceedings as being an angry, violent person. He was adamant that S. has never seen him yell or scream. He has never smacked her nor threatened her. If he had to discipline her, he had always done so calmly.

[164] He did acknowledge one occasion where S. refused to get out of bed and it was after 11:30 a.m. on a Saturday morning. Rather than have S. see him get mad, he walked away quickly and went outside to calm down.

[165] When pushed by OCL counsel, he denied that he had punched a hole in the wall on that day, instead explaining that he opened the door too quickly on his way outside, causing the handle to smash into the wall creating a hole. He explained that S. was not in the room when this happened. The child had a friend sleeping over and they were sleeping well past lunch time. They were giving him attitude, and he just had to storm out of there and went outside to have a cigarette. He accidently swung the door too hard. When asked about the clinician’s evidence that S. is afraid of what will happen when the father gets angry, he denied that S. ever sees him angry. He then added that children should be afraid of consequences for not following a parent’s rules, and they should fear repercussions if they do something wrong so that they learn to stay on the right path.

[166] The mother described that there had been several incidents of violence early in their relationship. On one occasion, the father was intoxicated and he pushed the mother out of the car. On several occasions, there were loud arguments overheard by neighbours, who also observed the father push the mother. Other times, he would become angry over nothing and would punch holes in the wall.

[167] After the parties had separated, but while they were still living in the same house, the father installed spyware on the home computer which allowed him to access the mother’s conversations. The father admitted to doing this but justified it so he could prove that she was lying about being in other relationships and to ensure that no men were being brought into the home.

[168] The mother’s partner, G.M., described several of what he described as aggressive interactions with the respondent, a couple having been referred to above. One other incident occurred after the child had been picked up early by the father from summer camp. He drove to G.M.’s house to drop off the child’s stuff. G.M. asked the father to wait in his car, stating that he was not welcome on the property. The father refused, indicating that as long as his daughter was in the house he was not leaving. The father then proceeded to sit in the chair on the deck refusing to leave. G.M. tilted the back of the chair up, again asking the father to go back to his car, and after sitting there for a minute or so the father did leave the property.

FATHER’S MENTAL HEALTH

[169] As part of his testimony, the father shared details about his own struggles with mental health. He confirmed that he had been prescribed anti-depressants and sleeping pills and that he had been taking same for some time.

[170] In 2022, he had attended three times at the hospital. The first two occasions (April and May), he was feeling “very dark” and “all alone”, so he went for the day to obtain some mental health support, but he was not admitted. He explained that he finds that the weekends are most challenging, having been used to spending them with his daughter. This was the case when he went to the hospital on the Monday of the Victoria Day weekend.

[171] The third attendance was involuntary. He had picked up a three-month supply of anti-depressants and then learned that his trial documents had been rejected by the court portal. He described feeling like he was “drowning trying to save my daughter or maintain anything with my daughter”. He then made an impulsive decision to ingest two and a half months’ worth of his prescription medication. L.A. had called 9-1-1, and he was taken to the hospital by the mental health crisis team.

[172] The father filed a Form 30 Discharge Summary related to his recent hospitalization which confirmed that he had been hospitalized on August 16, 2022 and was discharged on August 25, 2022. The father explained that he was in the ICU for four days and the balance of time was in the mental health ward. The attending physician was Dr. I. Naqvi. The summary referenced a diagnosis of anxiety and OCD. When asked by OCL counsel whether OCD was obsessive compulsive disorder, the father was unsure. He did confirm that while in hospital the doctor had also prescribed a mood stabilizer for him to take.

[173] When asked if this had been an attempted suicide, he expressed that he did not want to take his life, but he was tired of “feeling like nothing…[being] estranged from my child for a year for reasons that have been unclear. I’ve been bound to litigation for over five years. My truth has not been heard until now. It’s just been a long, overwhelming ordeal and I just wanted to end the pain.”

[174] When it was suggested to him that due to his own mental health struggles he could not have cared for the child in August and was unable to care for her now, he responded, “If I had the chance to take care of [S.], I would not have been depressed. It’s been this litigation. It’s been these unfounded lies from the respondent. It’s the behaviours of the respondent, the lack of nobody hearing me out, the gaslighting, the stonewalling. It’s everything that has to do with court that put me into hospital. No other reason than litigation put me in hospital.”

[175] The court learned that during this hospitalization the father had reached out to S. through her District School Board of Niagara (“DSBN”) email account.

[176] On the second day of her testimony, the mother’s counsel advised the court that an emergency had happened at school and requested permission for the mother’s phone to be kept on. The child had messaged the mother that when she had unblocked her school email account, there were two emails from the father, one sent on August 16, 2022 including a photo of him in a hospital gown with monitors attached to him, and a second sent on August 22, 2022. The child sent screenshots of the emails to the mother, which were made exhibits and are set out below:

DSBN Message - August 16, 2022

▲Why is this message in Spam? You blocked messages from J….

Title/Subject: Hey

Miss you [S.]. My life has literally fallen apart these past few weeks. I need some sort of closure from you.

Love dad

[Image]

DSBN Message - August 22, 2022

▲Why is this message in Spam? You blocked messages from J….

Title/Subject: Birthday wishes

Hi [S.], I didn’t want to say happy birthday, because for me at least, I am not feeling all that happy today. But I am writing to say, “to another year!” I hope you find some positives today, I am doing my best to do the same.

I love you [S.],

Dad

[177] The mother indicated that the child did not want her to call, so the mother spoke with the school principal to put a plan in place: the child would be brought to the principal’s office for now, and if she needed to go home G.M. would be contacted to pick her up.

[178] The mother indicated that the child expressed in her message that she was having a panic attack after reading the emails. The mother described that the child was probably paralyzed with fear being in class and she hoped that by being taken to the principal’s office S. would calm down and someone would be there to make sure she is okay. As to any other steps she would take, the mother explained that she would contact the child’s therapist, Rita, to request an emergency session. The mother would then deal with the emotions that always come from these exchanges with the father, often causing S. to go into a downward spiral. When this happens, the mother takes the door off S.’s bedroom and sleeps in the hallway in front of her room. She would not take away all of the child’s privacy, but she did need to ensure that S. was okay.

[179] The mother was very emotional as she described the plan, and a break was taken to allow her to compose herself. Upon her return, she confirmed that the child would remain in the principal’s office, would try to go to next class (drama), which she enjoys, and would try to stay at school for the rest of the day, and would sit with the principal or someone in the office, if required.

[180] When the father was asked about what he hoped would occur by sending the hospital messages, he expressed wanting an acknowledgement from the child: “Either that she tells me she wants the break or she wants to get together – but to hear it from her.”

[181] When asked if the father had heard the mother’s evidence about the impact the messages had on the child, the father’s response was that while he saw how it impacted the mother emotionally, he did not really hear much about the impact on the child, other than the child needing to speak to a counsellor and talk to the principal. In his view, there was not too much said at all about S.’s interpretation of his messages. Even when pressed about what the mother had testified to in relation to having to take the door off the child’s room, he expressed, “That wasn’t because of this message, that was just due to how they’ve been treating [the child] since the numerous suicide attempts.”

CHILD’S VIEWS AND PREFERENCES

[182] The Office of the Children’s Lawyer became involved in 2018. The current OCL counsel, Mr. Grinbergs, took over as counsel in December 2019. When it became evident that the matter would be proceeding to trial, Mary Polgar became involved as a clinician in April 2021.

[183] Ms. Polgar obtained her master’s degree in social work in 1989. She worked at Family and Children’s Services for 20 years, three of those years as senior service manager. She has been with the OCL since 2016, initially as a clinical supervisor and later as a clinical agent. She explained that her role as a clinical agent is to meet with and interview children to ascertain their views and preferences and to assist lawyers in representing their child clients.

[184] Between April 2021 and August 2022, the clinician and OCL counsel met with S. a total of seven times. These meetings took place on April 10, 2021, September 10, 2021, September 23, 2021, October 15, 2021, January 11, 2022, June 28, 2022, and August 29, 2022.

[185] At the beginning, S. spoke of going between her parents’ homes, being with the mother during the weekdays and with the father during the weekends, and that more recently, it had had moved to a more fluid schedule where she could decide by texting one or other of the parents. She expressed enjoying a more flexible schedule.

[186] S. spoke about moving in with her father in 2021 but could not specify what had triggered that happening. She discussed being hospitalized in the mental health ward at the end of grade eight. Her father was worried that she might harm herself in some way, so he took her to the hospital. She shared that she later went back to living at her mother’s and was having a little bit of difficulty going between the two homes.

[187] She expressed having a stronger relationship with her mother, attributing it to the mother-daughter bond. She was “always super sad” when she left her mom’s house and it was “way better with mom”, but she was terrified how dad would react to that. She expressed that she gets scared when the father gets angry, and she is scared to tell him that she’d rather be with her mother.

[188] At the third meeting, on September 23, 2021, the child acknowledged that she had always been saying she wanted to spend 50/50 time with her parents, but she was really just trying to please everybody. Following the last OCL meeting, she had been dropped off at the father’s house. She did not want to go there but had been taken there by the mother. S. was really mopey, and the father was not happy with her attitude. In her words, “he just kept after me.” S. explained that she had been having a bumpy time in her relationship with the father and had been taking a series of minibreaks. In the past, she would pretty much do anything to keep the peace because she did not want people to be angry. However, she expressed being fed up dealing with the father. She described herself a couple of times as being like “a pot of water that had boiled over”. In reference to the current break from the father at the time of the meeting, she indicated that this was “new territory now” and she did not know how long the break would last, indicating it could be a few weeks or a few months.

[189] At the interview via Zoom on January 11, 2022, S. advised that she still had not seen her father and she was fine with that. When she had last had contact (in September 2021), she noted that her father wanted an explanation for her behaviours and the reason she did not want to see him. He sounded “ticked off”. The child discussed speaking with FACS and, although she did not like talking about that, she indicated that she “didn’t feel safe” around her father and that she has always been fearful of him in a way. She expressed that he would comment on her boobs getting bigger and he would hit/grab her butt or touch her thigh/leg. This physical stuff began when she was 11 years old, and she told him that it made her uncomfortable and it stopped for a bit. Then the behaviour began again and that was when S. decided she did not want to see him anymore. S. confirmed that she had told her therapist about this conduct.

[190] S. was clear that her father had never hurt her physically, but “he always has to be right, he yells, and he “loses his cool”. She then described an incident where she had a friend sleep over at her the father’s and he became angry and put a hole in the wall. She described that event as being terrifying. At the end of that interview, she stated “I have no desire to see him.”

[191] Ms. Polgar expressed that there was a striking difference in the child’s demeanour at the meeting on June 28, 2022. S. was able maintain strong eye contact, and, as she was much more talkative, it was a longer meeting. The child confirmed she was seeing a therapist every other week and her family doctor on the alternating week. She then spoke about overdosing on sleeping pills in 2021 while in Kitchener. She had little memory of this event. However, she did discuss her relationship with her current therapist, Rita, describing it as “the most comfortable therapeutic relationship” she has ever had.

[192] S. commented that her father seemed to have “an unhealthy obsession” with her: He would touch her, which was not okay; he would show up at her mother’s house when he was not allowed to; he would contact her when she had asked him to stop. However, she also noted that when she does get letters from him, she would truly miss him because what he said in the letters sounded so genuine. She noted that she has given him many chances and had been hopeful that he had changed, but he had not. This really made her sad. When asked what the issues were, she confirmed: the touching and he gets angry and throws temper tantrums.

[193] She then spoke about being hospitalized in 2022. She had not been feeling well, had cut herself at school, and when she met with her doctor, she disclosed feeling suicidal. Her father found out about the hospitalization because he still had access to her tablet which remained at his home. As a result, he was able to read her private conversations with other people. After that, she blocked him so he no longer could access any social media accounts.

[194] The final interview took place on August 29, 2022. S. had visible scratches on her left cheek. When asked about them, she expressed feeling sad and frustrated and thinking a lot about her dad. She was also stressed about school starting.

[195] She explained that her birthday had been the previous week and she had just turned 15 years old. She expressed feeling confused about her dad and missing him a lot lately. She showed Mr. Grinbergs and Ms. Polgar an MP3 player that her father had dropped off at the mother’s home. She described the MP3 player as “very vintage” and something that she had always wanted. Her father had downloaded upwards of 200 of her favourite songs onto it that he knew she liked. She was not sure if there was a link between the gift and/or the letters that were making her miss her dad. She described “fighting against her brain” as she was not sure that she could trust that he had changed. When asked what needed to change, she listed that he needed to deal with his anger and change what he does when he gets angry, and the touching must stop. She later indicated that she had not heard from her father on her actual birthday, but then explained that she had blocked him on all social media, so if he had sent her something she would not have received it.

[196] S. confirmed that she had spoken to her mother about how she was feeling when she got the gift from her father, but she did not tell her everything because she did not want her mother to worry. As she explained, “I’m the worrier” and “I’m a people pleaser”.

[197] When asked about seeing her father, S. confirmed that she has the option to see her dad whenever she wants to, and “mom is definitely not a factor in me not seeing him”. If she did choose to see her father “100% mom would take her”. She confirmed that as far as the letters from her father, she gets them from her mom in a timely way, although she might hold onto them until just before an appointment with her therapist “because I don’t always handle these things really well”. She confirmed that if she had wanted to spend time with her father, she would do so once she had spoken with Rita. S. confirmed that if she wanted a visit, she would organize that through her mother, rather than texting her father directly.

[198] S. confirmed that she had been the one to take the initiative to block her father and delete any social media accounts and block any phone numbers where he might have reached out to her. She recalled the previous fall he had sent her concerning messages through an Instagram account which included: “life is not worth living without you.” She received this while at school, which was “1000% worse” to get there instead of at home. She immediately contacted her mother, who suggested they contact the police (this incident had also briefly been mentioned at a prior meeting).

[199] The child spoke again about missing her father and wondering whether she might decide to have contact with him. Ms. Polgar then asked S. about whether there was information that she would like shared with her father, such as school progress or medical information. Regarding school, she replied “No, that just gives me an ick feeling. If I’m not doing well in school, he’s going to blame my mom for that”. As to health information, she was clear that it could only be shared if she wanted to share it. She was specifically asked if her father could come to therapy and she expressed having trauma from her previous experience where he had joined her in therapy, so she did not see that happening. She then expressed that she wanted to be the one in complete control of everything. She followed this with a pause, indicating, “That was really hard to say! Did that sound weird?” to which Ms. Polgar answered, “No, it sounds really clear. You want to be in the driver’s seat about what’s going on, whether it’s seeing dad, or dad having any information about what’s going on in your life and what any contact would look like”. S. agreed.

[200] At one point in the interview, OCL counsel asked S. to show them her arm and there was extensive scarring. The child differentiated the scratches on her face as being from grabbing her face with her nails a few days earlier; the scratches on her arm were made in self-harm (using a blade from a pencil sharpener) which had happened a couple of months previous. She had been working on coping strategies with her therapist to not cut herself.

[201] On cross-examination by mother’s counsel, Ms. Polgar confirmed that during her interviews she is listening to what a child is saying but is also watching non-verbal cues. In that regard, she confirmed that in the first five meetings the child’s eye contact was minimal, she was a little slumped and, although she shared, her observation was that the light around S. was “dimmed”. By the last two meetings, in June and August 2022, the light had been turned right up and S. walked in, made great eye contact and was a very talkative young teenager.

[202] Ms. Polgar confirmed that she did ask S. about her mother’s connection to the decision about seeing her dad, and she was clear that her mother would support her in having visits, if the child had talked it through with her therapist first.

[203] On cross-examination by the father, Ms. Polgar clarified an apparent inconsistency in that at one point she expressed that S. and her mother often shout, but can work it out, but at another point she indicated that they do not fight. The clinician explained that there was certainly mild irritation between them, but any conflict was resolved quickly, with a hug and mutually.

[204] In contrast, Ms. Polgar’s testimony about the child’s description of conflict with her father was S. expressed as she had gotten older she was no longer taking dad’s side and agreeing with everything he said. This resulted in big blow-ups, happening much more often. She expressed that her father’s reaction was scary to her.

[205] While the father expressed to OCL counsel he agreed that Mary Polgar has extensive experience as a clinician, his complaint was that she had only been involved for a limited amount of time. Other than the first meeting when the child was in the father’s care, all other meetings took place while she was living with her mother. By then the estrangements had begun to happen and, given that, the clinician was not involved enough to know the whole story.

[206] According to the father, S.’s wishes should not be given any weight by the court. The child lacks capacity to decide whether to see him and to really know what is best for her. She is still a minor and, coupled with her mental health issues, she is struggling too hard to be able to make such important decisions. In his view, despite what she has stated, she needs the support and love from both parents.

ANALYSIS

[207] The first step the court must undertake is to determine whether there has been a material change in the circumstances of the child and/or in the ability of the parents to meet those needs that would warrant a review of the Rogers order.

[208] Having carefully considered the evidence, I am satisfied that there has been a significant material change in the circumstances of the child.

[209] More than ten years has passed since the initial order was made. The child was almost five years of age then. She recently turned 15. What was best for the child ten years ago has likely changed. However, the passage of time is only one factor to consider. More importantly, in the circumstances of this case, since the order was made, the child has been diagnosed with ADHD, learning disabilities and generalized anxiety disorder. The child’s struggles with her mental health have included suicidal ideation and attempted suicide, none of which could have been contemplated when the Rogers order was made.

[210] The next step is for the court to ascertain what parenting order is in the child’s best interests today. This must be considered from the perspective of the child, taking into consideration the child’s needs and the ability of each parent to meet those needs. In that regard, the factors set out in section 24 of the CLRA must be considered, and the extensive evidence received leads the court to no other conclusion than that a substantial change in the parenting order is warranted in order to advance the best interests of S.

[211] There is no doubt whatsoever that the father has a deep love and affection for S. The court has received overwhelming evidence to support this. Prior to the final break in September 2021, he had been a constant in the child’s life. He has been fully involved in all aspects of the child’s care and upbringing since birth. In addition to spending most weekends and holiday time with S., he has fulfilled such parental roles of getting her vaccinated; getting her to and from daycare/school; attending at extracurricular activities; taking her to most dental and many medical appointments; being proactive in getting medical attention regarding the ADHD diagnosis; caring for her when she has been ill; and overall, in a general way, doing all things required to provide for the child’s physical care. However, in more recent years, the area in which the father has struggled is to provide for the child’s emotional and mental well-being.

[212] Throughout his testimony and in his dealings with the professionals involved with S., the father was adamant that the mother has been engaged in parental alienation with the clear intention of turning S. against him. From his perspective, that is the only possible reason for S. not wanting to continue their loving father-daughter relationship.

[213] The court must always be attuned to any alienating behaviour by one parent and the impact that this may have on a child’s behaviour and expressed wishes.

[214] Both the mother’s counsel and OCL counsel submitted that there can be no finding of parental alienation as against the mother because there was no expert evidence presented by the father. I disagree.

[215] The case law is clear that expert evidence is not required for a court to make a determination of “parental alienation”: See C.S. v. M.S. (2007), 2007 CanLII 6240 (ON SC), 37 R.F.L. (6th) 373, at para. 65, affirmed 2010 ONCA 196, 76 R.F.L. (6th) 14, at para. 5; Bouchard v. Sgovio, 2021 ONCA 709, at paras. 73-75; A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 31-32 in which the Ontario Court of Appeal states:

In finding that the mother alienated the child from the father, the trial judge was not purporting to make a psychiatric diagnosis of any syndrome or condition. Rather, he was making factual findings about what happened in this family. This is the stuff of which custody trials are made, and as conceded, no expert opinion was required to enable him to do so.

Those factual findings logically led to certain remedies being appropriate or not. The trial judge did not need expert evidence before choosing the remedy that was in the best interests of the child.

[216] It has also been established in multiple cases, that high levels of parental conflict may create a risk of emotional harm, not only within the meaning of the Child, Youth and Family Services Act (“CYFSA”) and the former Child and Family Services Act (“CFSA”): See Family and Children’s Services of St. Thomas and Elgin v. B.M. and D.O., 2022 ONSC 28; Children’s Aid Society of Waterloo (Regional Municipality) v. A. (B.), 2005 ONCJ 220; Catholic Children’s Aid Society of Hamilton v. V.A.N.E. and M.E., 2022 ONSC 4684; but also in the context of bitter “custody” battles: See W.C. v. C.E., 2010 ONSC 3575, 93 R.F.L. (6th) 279; Leelaratna v. Leelaratna, 2018 ONSC 5983. At para. 65 of Leelaratna, Justice Audet stated:

I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being…

[217] Similarly, in J.M.G. v. L.D.G., 2016 ONSC 3042, Justice Fryer states at para. 103:

It is contrary to the best interests of children, and indeed harmful to them, to become unjustifiably estranged from a parent whether the result of alienation or a combination of other factors. [Emphasis mine]

[218] The father submits that there is ample evidence of alienation pointing to the multiple and ever increasing number of times that the child stayed with the mother rather than spending the full amount of time with him required under the Rogers order, the reasons being: to pick up a puppy; to go to a party or have a sleepover with a friend; to prepare for a cheer competition at the mother’s house; to babysit her half-brother; or, most often, to go camping with her mother, G.M. and M.M. on the May long weekend and for a week in July and August of each year. Based on these incidents, the father asks that the court find that this was an intentional action by the mother to entice the child to take time away from her father and to spend more time with the mother.

[219] In my review of the testimony, what is abundantly clear is that the father was extreme in his refusal to allow the child to spend weekend or any additional time with the mother. His own calendar verifies this. I do not accept that the mother did not ask for extra time or that beyond fall of 2014 her work prevented her from spending weekend time with the child. Instead, I find ample evidence to conclude that most requests by the mother were refused by the father. On the rare occasions when additional time was allowed, the extra time with mother was limited to a set short period and required that the father’s “lost time” be made up by an extra overnight or additional time during the week. The best example of this was the party at the Merritton Community Center. The father allowed a window from 1:00 p.m.to 3:00 p.m. but, when it ran later, rather than simply waiting until the party had ended he instead threatened to and then did call the police. This was done without any regard for the potential disappointment of the child of having to leave the party early or the child’s embarrassment had the father or the police entered the community center to take S. away.

[220] Although the father was not permitted to file any text messages between the parents, it was apparent from the evidence that while there may well have been instances where the mother reacted with negative or insulting language about the father, the texts and messages from the father were without doubt much more derogatory and condescending toward the mother. His own testimony and comments at trial verified that. During the early years, I accept that it was easier for the mother to go along with the father and his demands to avoid an argument and the name calling that followed. The father demonstrated this in his own testimony as to how piano lessons came about and how mid-week overnights continued even when the mother said they would end; he was in complete control of the parenting schedule. This was also apparent in the number of times that the mother enlisted others to communicate information to the father, such as the school principal, Mr. McLean, or the reconciliation counsellor, Gillian, about her inability to pay her share of the reconciliation fees. It was also the reason that G.M. attempted to act as the “go between” for the mother and father. G.M. observed the impact that the communication with the father had on the mother, making her anxious and upset. The father put an end to that intervention after a few short weeks, likely because he did not have as much success in getting his own way with G.M. The text messages between these two men typified the same vile language by the father towards G.M. and others.

[221] The father’s testimony was telling about the power imbalance between the parents. It was abundantly clear that, from his view, it was perfectly acceptable for the father to be in control over issues concerning S., but it was wrong and unfair of the mother to exercise any authority over such matters.

[222] As stated by the father, I would agree that ideally communication concerning the child and changes to a parenting schedule should be done as between the parents, not between the child and a parent. However, when effective and civil communication is impossible and one side in the discourse is unable to compromise in their position, in some situations, when a child reaches a certain age, communication may appropriately be done through the child. However, even after hearing from the child directly about her preference for scheduling or otherwise, in most instances, the father was not accepting of this and used it to further disparage the mother and later the child.

[223] Three examples clearly demonstrate this:

a. The child was excited to attend an NHL game with the mother. After the mother tried to arrange this with the father without success, the child tried to persuade her father. His response was “that’s not happening” because the child had already spent too many weekends with the mother over the Christmas break. Instead of considering the child’s feelings in wanting to go to this event, the decision was based on not wanting to miss “his” time with S.;

b. The child returned from a week away with L.A. and her children. She was excited to go for a sleepover with a long-time friend instead of spending the balance of a long weekend with her father. The child communicated this to L.A. and the father “blew off steam” by calling the mother a derogatory name, causing yet another break in their parenting time; and

c. The child began to go camping more often with her mother and G.M. It was evident that the child had loved this activity for many years. In fact, on an annual basis, she went camping with the father the first week of June, being taken out of school to do so. Camping is also an endeavour that the mother and her partner enjoy. The father could not accept that S. could enjoy this activity with her mother and instead alleged it was the mother creating opportunities to take away “his” time with the child. The entries in the journal for May 2017 are heartbreaking to read. Rather than the child simply being allowed to enjoy the weekend camping with her mother, the child clearly felt she had to take the father’s side to assuage his upset, which took away from her own enjoyment of the camping trip with her mother and G.M.

[224] The father submits that the third strong indicator of alienation by the mother was the unverified allegations of sexual touching disclosed in therapy in the fall of 2021, just prior to an attempted suicide attempt by S. Certainly, there have been instances where repeated and knowingly false accusations about physical and/or sexual abuse have occurred as part of alienating conduct by a parent.

[225] The joint FACS/NRP investigation did not result in criminal charges. It could be that the statements from the child did not meet the high standard of proof needed for a conviction. Alternatively, it could be, as the father stated, that he has never touched S. in a sexual way. Without hearing from the FACS worker and from the child’s therapist, Rita, as to the disclosures made by S., this court is unable to determine whether something inappropriate did happen between the father and the child. It also remains unknown what, if any, impact this had on the timing of the child’s attempted suicide. What is clear is that the father’s actions, even if entirely innocent and without sexual overtones, made the child feel uncomfortable. She disclosed her discomfort to the father and the conduct stopped. Then it started again. While the child never did raise it again with the father, likely believing it would be futile to do so, she did raise it with her therapist (with whom she has a good relationship) and with the OCL clinician.

[226] A finding of parental alienation must be based on facts, not merely an assumption. After looking at the totality of the evidence, in the court’s view, there is no evidence that the mother has acted in a way to poison the relationship between the child and the father. Rather than alienation being the reason for the current and longstanding estrangement in his relationship with his daughter, as clearly expressed by S., there were valid reasons for choosing to forego the weekend time with her father. S. attempted to express her view to her father, but in most instances he ignored her wishes, choosing to focus on his needs instead of the child’s and insisting that he should not lose “his” time with the child.

[227] The father expressed repeatedly that all he wanted was a chance to tell “his story”. He has now been given that opportunity and, after reviewing all of the evidence, in my view, the only parent engaging in alienating behaviour has been the father. The father’s testimony and the journal are full of examples of such conduct, including:

a. badmouthing and denigrating the other parent or their abilities as a parent. For example, calling the mother a “shitty parent” for not medicating the child immediately or for effecting the child’s wish to spend a Friday evening with her mother; calling the mother “bitch” and other derogatory names (in text, in person, and on the phone) just because she supported the child’s wish to have a sleepover with her friend or spend time with her mother; disapproving of the mother’s choice of a tutor (a co-worker of the mother educated as a teacher) as “[his] dog could teach S. more than the tutor could”.

b. fostering dependency on him and being the child’s protector. For example, discussing in the journal that the mother cancelled dentist appointment and the importance of it being rescheduled; denying the mother to attend at McMaster Hospital at the same time as him; and denying the mother to attend at Fear Busters (an anxiety workshop for kids and parents), as he had made the arrangements and it fell on “his” time;

c. showing disinterest in the other parent’s time with the child and seeing little value in the child having a relationship with her mother. For example, when the mother wanted to take child to an activity (the Painted Turtle, a school dance, or a party) insisting only he should do it because it occurred on “his” time and ignoring the child’s wish to spend that time with her mother, as it was more important to him that she spend time with him, and on the odd occasion when the mother was permitted to spend a Friday night sleepover with S. (to watch a new release of a Full House movie on Netflix) going ballistic and berating the mother for doing nothing with S. but “watching a fucking movie” on “his” time.

[228] I wish to emphasize that the court is not making a “diagnosis” of parental alienation as a syndrome or condition, rather, as the caselaw permits, I am making factual findings based on what has happened in this family.

[229] The relationship between the parents has been fraught with high conflict and tension. The father had no qualms about placing the child squarely in the middle of the fight. This was vividly portrayed when the father attended at the child’s school in February 2020, even after specifically being asked not to. The image of each parent on either side of a scared S., walking out to the mother’s car, with the father trying to persuade S. to come with him, and then, in front of the child, calling the mother a terrible parent and other names is appalling. The father denied that he intended to cause a scene at the school and vehemently denied that a scene occurred. To take this view completely ignores the feelings of the child who was literally stuck in the middle of this horrible interaction between her parents. I accept the mother’s version of this event and that the child was mortified by the father’s attendance at her school.

[230] The father’s animosity toward the mother cannot be overstated. Although the father tried in his testimony to downplay his anger toward her, suggesting that the name calling was occasional and just him “blowing off steam”, when pushed about it in cross-examination, his true feelings were evident when he admitted that he had very little respect for the mother, at best a three or four on a scale out of ten. He also admitted that in his written communication with S. since the last break he does not refer to the respondent as “mother” or “mom” instead using her first name only. He passionately expressed:

…since this most recent estrangement, from anything after… September 10th of 2021 after the heinous acts she’s been doing to split my daughter and I, no, I cannot refer to her as a mother. She’s not, she does not treat that child as her daughter. She treats that child as an accessory, as a weapon against me.

[231] When asked if that justified referring to the mother only by her first name, he explained, “In my heart she has lost the title of mom to that child, and it has to be earned. You can’t just pop a baby out and be mom. You might be a biological mother, but you’re not mom.”

[232] In deciding the parenting order that is in S.’s best interests, while the court must consider all factors relating to the child’s circumstances, section 24(2) of the CLRA does emphasize that the primary consideration must be the child’s physical, emotional and psychological safety, security and well-being.

[233] The father’s request is to return to the schedule under the Rogers order or to begin an equal parenting regime that he tried to put into place in 2014. There was no plan presented, rather the court should just require the mother to follow the parenting time order and all will be fine. Such a proposal is simply not feasible. The father’s position illuminates how truly out of touch he is with the child’s emotional and psychological needs, and it also fails to understand the child’s need and desire to be safe and secure in her relationships. Rather than promoting stability, this would undoubtedly continue the volatility that has marked so much of S.’s life.

[234] As close as the father and child might have been when S. was younger, and as involved as he once was in the child’s care and upbringing, that is only one factor to be considered. Looking at the current circumstances of the child and the father, it is contrary to the child’s best interests to place the father in any sort of caregiving or decision-making role for the child.

[235] To the court, the inability of the father to support and maintain the child’s relationship with the mother, his unrelenting behaviours toward the mother, and his inability to understand his role in continuing the conflict between them, truly reflects an inability to parent S. To knowingly involve the child in the conflict, as the father has done for an extended period, demonstrates a failure to appreciate the emotional harm caused to the child by such conduct. The father exposed the child to his own emotions without any regard for the effect this would have on the child. The journal entries, particularly in May 2017, as well as in the emails sent to S.’s school account in August 2022 confirm this.

[236] In determining a parenting order, the child’s views and preferences must also be considered. Although S. is a minor and has struggled with mental health issues, I disagree with the father that I should ignore the child’s wishes. The case law is clear that children should be given an opportunity to be heard, and the older they are the more weight that should be given to their preferences on decisions that impact their lives directly. At some point, it becomes futile to force a child to be somewhere that they do not want to be.

[237] The child’s wishes as stated clearly to the OCL clinician are that she does not wish to have any contact with her father unless it is initiated by her. As recently as a few weeks before trial, the child gave serious consideration to this matter. In August 2022, the father delivered a present to S., an MP3 player with some of her favourite music downloaded. The thoughtfulness of the gift touched S.; it was meaningful to her. While this caused her to think about the possibility of a visit with the father, upon reflection she reasoned that she was letting her emotions influence her, as the rational side of her brain knew there was no reason to believe that her father had changed his behaviour. The child’s wishes were clear and forceful. The court accepts the child’s wishes to not have any contact with her father unless initiated by her.

[238] I recognize that the child’s preferences have changed significantly over the last four years – from wanting a 50/50 parenting arrangement to taking multiple breaks from dad; to living with dad for a brief period in 2021 to refusing any contact with the father since September 2021. But in my view, this change in position was readily and rationally explained. The child expressed to the OCL that she is a “people pleaser” and would go along with her father to avoid conflict. As she has gotten older and no longer just agreed with her father’s view (about her mother or about the time spent with each parent), this led to increasing conflict. Much evidence was heard about the multiple breaks taken by the child in not seeing her father between February 2020 and September 2021.

[239] The difference in the parents’ evidence about these breaks was striking. According to the father, given their strong bond, it was “easy peasy” to repair the father-daughter relationship, requiring little effort from Gillian. He had little insight into how his cavalier approach and the multiple breaks affected S. In contrast, the mother testified that these breaks were massively difficult for S.

[240] Clearly it was hard for S. to confront her father about his behaviour. It was only with the support of Gillian that S. had the courage to express how his behaviour made her feel and to explain the reason(s) for taking a break. Gillian attempted to assist the father to understand that S.’s feelings were justified; wanting to spend less time with a parent is typical teenage behaviour. Not only was the father unable to accept that explanation but, even during a counselling session, the father was unable to control his anger with the child. This is detailed in the email from Gillian in August 2020. I have no doubt that the father’s reaction out of view of a third party would have been worse and much scarier for S. to deal with.

[241] After having finally expressed herself, the child would reasonably expect that the father would make some effort to change. That was not the case. The father confirmed that, only after being told to by Gillian, he did apologize twice to S. for his conduct. Unbelievably, the father’s attitude was that all should be fine between them as he had apologized, having no insight into the fact that to be sincere in apologizing requires an acknowledgement that he has done something wrong and some effort being made to not repeat that action. As demonstrated throughout the trial, the father had no ability to assess the role his own behaviour had on the child’s decision to remove herself from a relationship with him.

[242] The father’s review of CFS and Gillian’s services speaks volumes about his inability to see anyone else’s point of view but his own. It was inconceivable to him that the review would have a significant financial impact on Gillian. It was nearly impossible for him to understand the embarrassment and potential significant impact on the child by disclosing her suicide attempts and struggle on a public website. He was reactive and shortsighted, and in the process burned the “life-line” that he had with Gillian.

[243] I do find that the mother’s estimate of fees she paid to CFS were exaggerated. However, her position in not contributing toward the CFS costs in September 2021 was not unreasonable. I come to that conclusion based on the father having made it clear that he would not contribute toward the private therapist expense and that, over the 18 months that Gillian had been involved with the family, all but one reconciliation session related to repairing the father-child relationship, essentially as the father refused to change his behaviour.

[244] I am also satisfied that in making her decision to not have contact with her father, S. has not been influenced by her mother. The OCL clinician confirmed that at the recent meetings the child was direct in stating her views and in her wish to have control over what happens in her life. Mary Polgar has extensive experience in interviewing children, and I accept her evidence without hesitation. While she was not involved from the beginning, she certainly had multiple chances to speak with S. in the 17 months that she was involved.

[245] The child was able to confirm that, if she does wish to have contact with the father in the future, she will advise her mother who would then make it happen. There was also a specific plan in place for the child to speak to Rita in advance of any contact occurring, which makes sense given the strong relationship with that therapist. The mother’s evidence about these bi-weekly private therapy sessions confirmed how important these are for the child’s wellbeing – as crucial as providing running water or a roof over the child’s head.

[246] The child also expressed a preference that her father not have access to any information about her health, education or therapy and that he not be involved in decisions regarding same. As set out in s. 20 of the CLRA, there is a presumption that, at least as a starting point, both parents are equally entitled to decision-making responsibility for a child and that they each have the same right to make inquiries and be given information about the child’s wellbeing from teachers, doctors, or others involved with the child’s health and education.

[247] On the specific facts of this case, a compelling case has been made to rebut that presumption. It would be contrary to the child’s best interests for the father to have access to the child’s medical and health information. The father has shown that he is unable to respect the child’s privacy. He admitted to asking the child what she discussed with Kathryn and then expressed his mistrust of the counsellor to the child. He accessed the child’s social media accounts on the tablet left in his home, refusing to acknowledge that this was a breach of the child’s privacy. He used the Instagram account to express what could only be a suicidal thought to the child, which was inappropriate both for the harassing element and for causing the child to worry about his wellbeing. He also had no understanding of how his public review about Gillian further breached the child’s confidentiality. In a similar fashion, he had no ability to comprehend how the emails that he sent to S.’s DSBN account were inappropriate and could have a devastating impact on S. and on her mental health.

[248] Despite the child telling her father many times what her wishes were, even as late as August 2022, he expressed a need to still hear it from her. In reality, the father needs to listen; the message has been clear.

[249] Section 24(j) of the CLRA mandates that in determining the parenting order to be made the court must consider any family violence and its impact on the ability to care for and meet the needs of the child.

[250] It was clear that the father was not physically violent toward the child, in that he did not strike her or threaten to do so. An absence of physical violence does not mean there has been no family violence. The father became increasingly unhappy with S. when she began spending less time with him and taking breaks. There was undoubtedly an intimidating effect when the father insisted on the child explaining why she ignored his text messages or why she chose not to come or stay at his home, or when he stormed out of the house and put a hole in the wall. As S. relayed to the OCL clinician, she found this latter event to be terrifying.

[251] I also accept that the mother was intimidated by the father’s aggressive and condescending manner in dealing with her. There was a controlling element to his behaviour at separation when he placed spyware on the home computer, and that behaviour continued for many years in how he dictated and restricted the mother’s time with the child.

[252] The father refused to acknowledge that he ever became angry, instead insisting that he was “frustrated”. Gillian indulged him by accepting that label for purposes of trying to reconcile his relationship with his daughter. However, actions have consequences, and, in these circumstances, the court has no difficulty in finding that the father’s behaviour was threatening and controlling of the mother and the child. It is also abundantly clear that, until the father acknowledges that his anger and how he expresses it is an issue and then takes steps to manage his temper, this will continue to impact his ability to care for and meet the needs of S.

[253] In the circumstances of this case, I find that the parenting order that is in the best interests of S. is to grant the mother sole decision-making responsibility. S. shall have her primary residence with the mother. The father’s parenting time with S. shall be in accordance with the child’s wishes. If there is to be contact, it shall be initiated by the child, not by the father. The father shall have no right to obtain information or discuss the child’s health, education, or therapy with any of the child’s care providers. The necessity of the father providing consent to obtaining passports or other identification is dispensed with along with his consent to travel.

[254] This decision is not made lightly. Given the father’s own mental health struggles, I have considerable concern for the father and the impact this order could have on him. While I am empathic to his situation, my role is to decide parenting based on what is in S.’s best interests, not what is best for the father.

[255] I am also cognizant of the fact that the effect of this order is that the father is unlikely to have parenting time with S. for some period. It is unknown when or if that will resume. Despite extensive efforts being made through reconciliation counselling with a goal of having the parenting relationship continue, the father’s refusal or inability to adjust his conduct leaves no other alternative than to deny him parenting time unless the child wishes to see him.

[256] I am satisfied that, despite the high level of conflict between the parents over the past many years, the mother will support the child having a relationship with her father if S. chooses to open that door. The mother has put into place a critical professional system for S. This includes a therapist and family doctor with whom S. feels comfortable and supported.

[257] Despite the condescending treatment by the father, the mother has been able to put the child’s needs and best interests ahead of her own. She continued to take the child to the father’s home, often when she did not want to go. When the child felt comfortable to express her desire to take a break from her father, the mother did initiate contact with Gillian, ensuring the child attended multiple sessions of reconciliation counselling. This was not done to save face or to look good for the court (as theorized by the father); it was done to try to support the child’s relationship with her father. Those efforts were also evident from the mother’s actions when letters and gifts were delivered by the father. No doubt it would have been easier emotionally for the mother to scrutinize them carefully before giving them to S. or to not even give them to the child. The mother did not do that. Instead, whatever was sent by the father was given to the child, and if delivery was delayed, it was done to ensure that an appointment with the child’s therapist was upcoming shortly thereafter so that S. had a safe place to discuss her feelings. The mother has provided ample evidence that she has a concrete plan that meets the physical and emotional needs of S. and that she will continue to act in the best interests of the child.

DISPOSITION

[258] For the reasons set out above, the following order shall issue:

The order of Justice Rogers dated May 10, 2012 shall be varied as follows:

1. The respondent mother shall have sole decision-making responsibility for the child, S.D.D.

2. The child’s primary residence shall be with the respondent mother.

3. The applicant father shall have parenting time with S.D.D. in accordance with the child’s wishes. The applicant father shall not contact the child unless such contact is initiated by the child, in the first instance. If contact is initiated and the child later indicates a wish that it not continue, the applicant father shall cease all contact with the child.

4. Any records prepared relating to the child, S.D.D., whether they be regarding therapeutic counselling and/or personal health information shall not be disclosed to the applicant pursuant to the Healthcare Consent Act and the Personal Health Information Protection Act.

5. The applicant father shall not contact any of the child’s health care professionals without the prior written consent of S.D.D.

6. The applicant father shall not contact any of the child’s educators, nor shall he have the right to access any educational records, without the prior written consent of S.D.D.

7. The consent of the applicant father to the renewal of the child’s passport and any other identification is hereby dispensed with.

8. The consent of the applicant father to permit the child to travel outside of Canada is hereby dispensed with.

[259] The issue of costs will be deferred until the release of my decision on the chid support issues.

MacPherson J.

Date Released: 2023-01-11

COURT FILE NO.: FC-18-00000502-0000

DATE: 2023-01-11

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.R.D.

Applicant

• and -

S.B.

Respondent

REASONS FOR decision on motion to change RE: PARENTING

W. L. MacPherson, J.

Released: 2023-01-11