Y.H.P. v. J.N., 2023 ONSC 5766

COURT FILE NO.: FS-14-397562

DATE: 20231016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Y.H.P., Applicant

AND:

J.N., Respondent

BEFORE: M. Kraft, J.

COUNSEL: Yunjae Kim, for the Applicant

Shawn Miguel Philbert, for the Respondent

HEARD: October 5^th, 2023

Endorsement

Overview

[1] Within this Motion to Change proceeding, the father has brought a motion seeking a temporary variation of a final parenting order, to reverse the primary residence of the parties’ one child, S., from the mother’s home to his home, with a 120-day blackout period where the mother is to have no contact with S., so he and S. can attend a Family Bridges program to address parental alienation and to repair their parent-child relationship.

[2] By way of brief history, the parties were married for 6 years. They separated about 8 years ago, on July 1, 2014. They have one child, a daughter, S., currently age 12. Despite a 3-year history of high conflict litigation, the parties resolved their issues by way of a consent order on January 30, 2017. They consented to sharing joint custody, now decision-making responsibility, of S., and agreed that S. would reside with the father 5 nights out of 14 and the mother 9 nights out of 14 (“the 2017 Final Order”). Currently S. resides exclusively with the mother and the maternal grandmother. She refuses to have any contact with the father.

[3] The father has very serious concerns that S. has been actively alienated against him by the mother. S.’s behaviour toward him has escalated over time. The father’s in-person parenting time was suspended on consent at the beginning of the Covid-19 pandemic. In early 2022, as soon as the father began insisting on resuming his in-person time with S., the mother and S. began to make allegations that he physically, sexually and emotionally abused S. Many of these allegations were made by the mother in the previous litigation, before the 2017 Final Order was reached. S. believes that the father has sexually, emotionally and physically abused her. The mother also subscribes to this view. Such abuse has been investigated and has not been verified or proven.

[4] The father submits that S. is being severely alienated against him by the mother. The father’s Motion to Change has not been scheduled to be heard. On this temporary motion, the father argues that the current situation is so serious that S. is suffering emotional harm by remaining with her mother because of the poisonous environment in which she is living. He argues that the evidence is clear that if S. is not removed from her mother’s care for a period of time, and if he and S. are not given an opportunity to do intense work to repair their parent-child relationship, S. is at risk of losing the opportunity to have a meaningful relationship with both parents. Despite a consent court order that was made for the father’s parenting time to resume with S. and for the mother to facilitate and encourage this time, the mother let S. choose not to attend and implicitly supported S.’s rejection of the father. A further consent order for the parties to engage a reunification therapist, resulted in the mother making allegations to the authorities the next day of abuse on the father’s part to S. Ultimately, the reintegration therapist found that the mother sabotaged the therapy and reported the mother to the Children’s Aid Society of Toronto (“CAST”) for causing emotional harm to S. The father argues that it is clear the mother will not follow any court order that reinstates the father’s relationship with S. and appears ungovernable at this time. As a result, the father submits that his parent-child relationship with S. is at serious risk and cannot be repaired without him and S. having an opportunity to rebuild their relationship without interference from the mother.

[5] The mother argues that S. does not want to have a relationship with the father and her wishes should be respected and followed. She believes the father has abused S. physically, sexually, and emotionally, despite there being no verification that this is true after thorough investigations. The mother argues that this matter cannot be resolved on a motion but must happen only after a trial, when the court has the benefit of viva voce testimony which can be tested. She submits that there are no serious child protection concerns that would warrant a change in S.’s primary care or decision-making. The mother brought a cross-motion that the OCL be asked to conduct an updated s.112 assessment and/or a Voice of the Child (“VOC”) report and, alternatively, she seeks a s.30 parenting assessment.

Issues to be Decided

[6] The issues for me to decide on this motion are as follows:

a. In what circumstances can a Court make a temporary variation of a final parenting order?

b. Do the facts of this case meet the more stringent test applicable when a parent seeks a temporary variation of a final parenting order, such that the circumstances are so compelling and of an exceptional nature that they require an immediate change?

c. If the answer to b. is yes, it is in S.’s best interests for her primary care to be changed to the primary care of the father, with an order that the mother have no contact with her for at least 120 days to address the parental alienation experienced by S.

Conclusion

[7] I have found that the facts of this case are so compelling, of such an exceptional nature, and the alienation of S. against the father so severe, that not making the temporary order requested would cause S. emotional harm. Accordingly, I have determined that it is in S.’s best interests to have her primary care to be changed to her father, for the father to have temporary decision-making authority so he and S. can access therapeutic assistance to repair and restore their relationship, and for the mother to have no contact with S. for at least 120 days to ensure that the therapy is successful. During this time, the father is to ensure that S. attends school and engages in all of the extra-curricular activities in which she is currently enrolled.

Litigation History

[8] It is helpful to review the litigation history in this matter to provide context to the mother’s behaviours and to identify that there is a documented history of her attempts to interfere with and impede the father’s parenting time with S. prior to the 2017 Final Order.

[9] The parties were engaged in high conflict litigation from 2014 to 2017. The mother is a science teacher and the father is a dental surgeon. In 2016, the mother made false allegations to the police and the CAST that the father had sexually assaulted S. Despite being investigated by the police, the CAST, SCAN, the Office of the Children’s Lawyer (“OCL”) and other medical professionals, there was no verification of abuse on the father’s part. The father was not able to secure parenting time with S. until he brought an urgent motion before Kiteley, J. who granted him parenting time and denied the mother’s request for supervised access.

[10] The OCL prepared a report in 2016 describing S. as being happy and comfortable in her relationship with the father and expressed concern about the mother’s interference.

[11] Ultimately, the parties resolved their issues by way of a consent order on January 30, 2017 at a TMC, when Wilson, J. granted joint custody of S. to the parties and set out a two-week shared parenting schedule, such that S was to reside with father 5 nights out of 14 and with the mother 9 nights out of 14 (“the 2017 Final Order”). Among other things, the 2017 Final Order set out that neither party was to make unilateral decisions about S. and, in particular, decisions regarding S.’s health care, counselling and education, and if a child-related decision arose about which the parties could not agree, they were to first try and resolve the agreement through negotiation, then mediation, and failing agreement, either party was free to commence a Motion to Change or application, unless the situation was urgent.

[12] Beginning on January 16, 2016, S. was in counselling at the Willow Centre with Dr. Pugliese. That therapy continued for 6 years until May 2022 when the mother unilaterally ceased S.’s therapy, contrary to the terms of the 2017 Final Order. The father believes the mother stopped S.’s therapy with Dr. Pugliese because the therapist supported S. resuming in-person parenting time with him.

[13] Between January 30, 2017 and March of 2020, the father’s parenting time with S. took place for the most part, in accordance with the terms of the 2017 Final Order.

[14] At the start of the Covid-19 pandemic, in March 2020, the parties agreed to temporarily suspend the father’s in-person parenting time with S. since he was continuing to see his dental patients in person and both parents wanted to minimize S.’s risk of contracting Covid. At that time, the father and S. began video calling through Facetime about 3 to 4 times a week and texting. The father agreed to this temporary arrangement, believing it would be short term. Instead, it lasted for 2.5 years.

[15] Beginning in January 2022, as the Covid restrictions were being lifted, the father asked to resume his in-person parenting time with S. At first, the mother agreed to do so in June 2022, when she claimed S. would be fully vaccinated. The mother then decided not to vaccinate S. and refused to allow the father in-person parenting time. In July 2022, the father requested to have his parenting time resume in person through counsel. The mother told the father’s counsel that S. is happy with the current parenting arrangements and quoted S. as saying she is happy to see her father online only. The mother also unilaterally terminated S’s counselling with Dr. Pugliese claiming that S wanted a change in therapist. S. began to change her attitude toward the father and started to resist having contact with him on video calls or in person. As a result of the mother withholding in-person parenting time between S. and the father, he brought a Motion to Change the 2017 Final Order.

[16] On October 11, 2022, the matter came before this court at the To Be Spoken to Court, as the matter was deemed urgent. Diamond, J. scheduled an urgent case conference on November 3, 2022. On November 3, 2022, the parties consented to a parenting arrangement where the father’s in-person parenting time would resume on Saturdays for 3-5 hours, which would continue for about 4 weeks, at which time a step-up parenting schedule was to be discussed or implemented. A further case conference was scheduled for January 13, 2023 (“The November 2022 Diamond order”).

[17] The November 2022 Diamond order was not complied with. On six consecutive Saturdays, November 12, 19, 26, December 3, 10, and 18, the mother allowed S. to stay home or brought her to the mall at the appointed time and drove her back without dropping her off, claiming S. refused to spend time with the father. S. was actively resisting and refusing parenting time with the father, was reporting abuse by the father to authorities and was yelling at the father from the mother’s car.

[18] On January 13, 2023, the parties entered into another consent order, agreeing to retain a reintegration therapist by February 7, 2023, without prejudice to the father’s contempt motion which was scheduled to proceed on January 17, 2023 (“the January 2023 Diamond order”).

[19] On February 9, 2023, Akazaki, J. released his decision from the January 17, 2023 contempt motion. The mother was found in contempt of court for her failure to comply with the parenting time terms of the November 2022 Diamond order. The mother was fined $5,000, with $1,000 being payable with 15 days, the balance of $4,000 payable within 30 days, pending a handwritten apology to the court to explain, in her own words, how she now appreciates that her conduct was wrongful. Akazaki J. held that the law expects parents to correct their children’s behaviour. In answer to the mother’s cross-motion to request the OCL to do a Voice of the Child report, Akazaki, J. declined to do so, finding that “there is no place for a child advocate if the purpose of the referral is to help the child continue an unhealthy course of behaviour.” The mother has appealed this order.

[20] Despite the January 2023 Diamond order, the reintegration therapy did not start until the end of March 2023 with Diana Polak, MSW. On April 24, 2023, the parties attended a case conference before Brownstone, J. and discussed the progress of reintegration therapy between S, the father and Ms. Polak. Brownstone, J. gave the father leave to bring a motion with respect to his parenting time, along with a motion for S. to resume her individual counselling. On May 25, 2023, at a further conference before Brownstone, J., the father sought to amend his Motion to Change to seek a decision-making responsibility for S. and primary residence. A timetable for the delivery of the amended Motion to Change was set out, including dates for questioning, and a long motion was scheduled for October 5, 2023, to address the father’s motion. Brownstone, J.’s Endorsement states that “this motion is about a child’s relationship with her father. It has been the subject of interim orders which have been of limited practical effect. It is important that it proceed on the dates above and that it not be adjourned”.

Issue One: In what circumstances can a Court make a temporary variation of a final parenting order?

[21] The cases of F.K. v. A.K., 2020 ONSC 3726, and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion.

[22] The starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726. Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

48. To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).

49. The first step: There must be a material change in circumstances since the last order was made.

a. There must be a change in the condition, means, needs or circumstances 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, would 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 original order.

50. 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 interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

52. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:

a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e. But the evidentiary basis to grant such a temporary variation must be compelling.

f. The court must start with the aforementioned two-part material change in circumstances analysis.

g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

[23] Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

[24] Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

[25] In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694, Kurz, J. set out that the proper text for an interim variation of a final parenting order requires:

a. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue;

b. The parenting issue must be an important one;

c. The circumstances arising since the final order must be urgent or pressing; and

d. The moving party must then prove that the remedy sought is in the child’s best interests.

[26] Although the test set out by Kurz, J. does not appear to be as stringent as the F.K. test, it is clear that the court has jurisdiction to make a temporary variation to the 2017 Final Order on a motion but it may only do so if the father meets the onus of demonstrating that the changed circumstances have created a situation of actual or potential harm, danger or prejudice for S. of such a nature that immediate rectification is required to safeguard S.’s best interests. If the father can establish that S.’s changed circumstances are so serious and are potentially harmful such that any delay by the court in addressing the problem is likely to continue or exacerbate the harm for S., then the court may be satisfied that S.’s best interests require an immediate change to reduce the detrimental impact of what the father submits are unacceptable negative dynamics between S. and the mother.

[27] The next step is to determine whether the father has met the onus necessary for the court to make a temporary variation of the 2017 Final Order.

Issue Two: Do the facts of this case meet the more stringent test, such that the circumstances are so compelling and of an exceptional nature that they require an immediate change?

[28] I find that the facts of this case demonstrate circumstances that are so compelling that I am satisfied that S.’s best interests require an immediate change to her primary residence to her father, without contact with the mother to reduce the detrimental impact of the mother’s unacceptable alienating behaviour. I make these findings based on the following:

a. There has been a material change since the 2017 Final Order was made which was not foreseen or reasonably contemplated. The 2017 Final Order set out a shared parenting schedule where S. spent 5 overnights out of 14 with the father. In addition, both parents were involved in making any major decisions that impacted S. and neither was permitted to make any such decisions without involving the other parent. It was not contemplated that the Covid-19 pandemic would result in a situation where S.’s regular in-person parenting time with the father would be suspended for 2.5 years. It was also not foreseeable that S., who had a loving and affectionate relationship with her father, would refuse to spend time with the father, insisting that she has been sexually and physically abused by the father. Further, it was not contemplated that the mother would exclude the father from making important decisions about S., such as terminating her therapy unilaterally.

b. I am satisfied based on the record before me that S. is being alienated against the father by the mother. It is overwhelmingly clear that not making a change in S.’s primary residence and the decision-making responsibility for S. places her emotional well-being at serious risk. Leaving the current parenting regime in place where S. resides primarily with the mother and maternal grandmother, will ensure that S.’s refusal to have any parenting time with the father will be supported by the mother. The mother’s refusal to facilitate and encourage S. to rebuild her relationship with the father will only serve to guarantee that S. continues to be entrenched in her refusal to see her father and will like result in her losing her ability to have a meaningful relationship with the father. The alienation is urgent and pressing and is an important issue.

c. The mother clearly sets out in her affidavit material that she believes the father has sexually, physically, and emotionally abused S. The mother has encouraged S. to report this abuse to CAST and the Toronto Police. The mother maintains these beliefs even though the allegations have been investigated by the authorities on several occasions, both in the past and recently and have not been verified. The mother has demonstrated that she will not follow an order for S. to have parenting time with the father. She has also demonstrated that despite consenting to an order for reunification therapy, the mother sabotaged the process. The mother is influencing S. and, as a result, S. refuses to see her father or have any contact with him because S. now believes her father is a bad person and has abused her. If a drastic change in S.’s primary residence is not made, S. will lose any opportunity to have a meaningful relationship with her father, which is clearly not in her best interests.

[29] I find on the record before me that the relevant facts are as follows:

a. S. had a loving and close relationship with the father prior to the commencement of the Motion to Change by the father in September 2022. This is not disputed by the mother. During the Covid-19 pandemic, the father and S. regularly had parenting time on FaceTime, playing online videogames and texting. The text messages between the father and S. during the pandemic demonstrate their affectionate relationship. They shared jokes, lighthearted banter, and expressed affection towards each other, saying they love and miss each other, exchanging heart emojis and kissing. The CAST records confirm that S. was seeing her father on alternate weekends; he would pick her from school on Friday afternoons and drop off back off at school on Monday mornings; and the father would take S. out and they enjoyed going to different places.

b. It is only once the father started seeking in-person parenting time, that S.’s behaviour took a turn for the worse. S. believes that the father physically and sexually abused her and has been openly hostile and rude toward the father. S. rejects any kind of interaction or relationship with the father. S.’s refusal to have a relationship with the father appears to be based on the fact that S. clearly believes the father was physically and/or sexually abusive toward her.

c. S. has been isolated by the mother. S. lives with her mother and the maternal grandmother. From the beginning of the Covid-19 pandemic in March 2020 until the beginning of this school year (September 2023), S. was going to school online and had limited exposure or ability to socialize. S. did not resume school in person until one month ago, in September, 2023. S. has fears about her allergies which are exacerbated by the mother’s anxieties and conduct.

d. Despite the November 2022 Diamond order that the father resume in-person parenting time with S. on Saturdays for 3-5 hours and the mother is to facilitate and encourage this time, none of these visits took place. The mother cancelled visits claiming that S. was sick and/or she was sick. It is only after 8 visits were missed that the father brought a contempt motion because the mother refused to facilitate or encourage the parenting time. Instead, the mother’s evidence is that (a) S. does not want to have in-person parenting time with the father; (b) S. is articulate and bright; and (c) S.’s views should be respected and followed. On February 25, 2023, the mother brought S. to the designated transfer spot and S. rolled down her window and yelled “I Hate you. I know what you did, I do not want to see you.” The mother did not interfere with S. yelling hateful messages to the father. The transcript of the mother’s questioning demonstrates that she believes her being quiet was not getting involved in the conflict. I am persuaded that the mother allowing S. to yell out such messages to the father from the car is an implicit encouragement of S.’s rejection of the father.

e. The mother is aware that S. refuses to have contact with the father but claims that her refusal is justified because the father abused S. physically, sexually, and emotionally. She provided historical accounts of this abuse back to when S. was three years old, to all the authorities involved. The mother is entrenched in this narrative even though the allegations have been investigated several times and no abuse has been verified. The mother continues to insist the abuse took place. As a result, S. has come to believe that the father inflicted this abuse on her and that he is a bad person.

f. The reintegration therapist retained by the parties on consent (and chosen by the mother), Diana Polak, concluded that multi-faceted family therapy is not suitable for this family, because in order to proceed with family therapy, the parents must agree that irrespective of the nature of the contact problem, it is in the child’s best interests to have parenting time with the resisted/rejected parent, and for efforts to be made to repair not only the ruptured parent-child relationships, but ameliorate the family functioning using a family systems-based model. This conclusion was made because Diana Polak determined that the mother sabotaged S.’s parent-child visit with the father at Ms. Polak’s office scheduled for May 20, 2023, by barging in after agreeing to not be in the building and repeating in front of S. that her father is dangerous. Ms. Polak concludes that this family presents with a severe manifestation of a contact problem and that outpatient family therapy is typically contraindicated for severe cases of parent-child contact problems.

g. Starting in February 2023, the mother encouraged S. and, she, herself, made the following negative reports about the father to CAST, after the mother had agreed to begin reintegration therapy:

i. On February 13, 2023, S. said she was calling to report that “her father is physically abusing her”; when she was 3 years old, her father punched a wall in her mother’s house because she did not want to go with him; “she was visiting the father regularly before the pandemic and she disclosed that he threw her in the air and slammed her on the couch.”; “S. advised she was seeing a therapist but refused to see them again as she did not trust them.”; “said she does not want to [attend] therapy or see her father.”; and “S. said her father broke [an] agreement to not pressure her during Facetime meetings to see him which he did.”

ii. On February 13, 2023, the mother reported the father was wrestling with S. against her will when he was having visits; “the father sent a drawing of a women from deviant art website and told [S.] to draw it.”; that “this image was sent to the daughter on January 30, 2022 (a year earlier).”; “advised that she had a case conference with the court on January 13, 2023, where it was advised the child needs to attend reintegration therapy.”

iii. At a home visit with S. and the mother on March 6, 2023, the CAST confirmed that despite alleging that the father physically abused her on her first call to the CAST, “S. could not elaborate on what was the context of the physical discipline from the father.”

iv. On May 8, 2023, the CAST Supervisor reviewed the safety assessment of S. and concluded that “S. was deemed safe with the parents and no immediate child protection intervention is required.” The supervision log confirms the following facts:

1. “The mother repeated her concerns from the past – she said that when the child was 3-4 years old her father had sexually touched her on her vagina. She said that last year the father sen[t] a picture of a half naked woman from a[n] art website;

2. “The mother said that the child does not want to see her father anymore as she is afraid that he will not bring her back and he may physically harm her.”

3. Among other things, S. said that

a. “she does not want to see her father as she does not feel comfortable, he sen[t] her a picture of a half-naked woman”;

b. “her father body slams her and she is worried that he will not return her.”;

c. “S. says that she does not want to see her father anymore.”;

d. “Recently her father got a paper stating that she must see him in person but [she] have told him on several occasions that she doesn’t want to meet with him.”;

e. “she was 3 years old when her mother and father divorced and she doesn’t remember much when they all lived together.”;

f. “S. shared that after the divorce she didn’t want to go with her father and now feels stressed when she has to see or talk to her father.”;

g. the “father would wrestle with her, throw her on the couch and body slam her and her cousins, which she didn’t like. He also showed her a video of a show he watches where a pregnant lady dies.”;

h. in February 2022, “father sent her an inappropriate photo on other’s phone showing a female private part and asked her to draw it.”;

i. When the father gets angry, he yells, and his face becomes scary. S. stated that “it has happened more than three times when I visited him in the past, but don’t really know or remember why. I can’t trust what father says because he goes against his words and doesn’t make me feel safe. He will not change if I ask him to and will only change when he wants to.”;

j. “Father does not listen to me when I tell him I don’t want to spend time with him and would like him to listen to me. We had an agreement that I was going to be nice and Facetime him, but he broke that promise, lied to me, and threatens me by saying he will call his lawyer.”;

k. “I am worried that father will hurt me, take me [a]way, kidnap me and won’t let me return to mother.”;

l. “Father forces me to see him, and I don’t want to.”;

m. “I don’t speak to father on Facetime anymore. He lost his right to speak to me.”;

n. “I don’t want to take to my father ‘ever again” even if he changes.”;

o. When asked her about what she thinks about her relationship with her father in the future if they do not see each-other for a long time, “she said that she does not want any relationship with her father.”

h. The CAST decided to close the investigation on April 25, 2023 and concluded as follows:

i. “Based on information gathered from both parents and the child it seems that the mother may be influencing S. regarding not seeing her father, as she believes that he sexually abused S. This was investigated on several occasions and was not verified in the past. In the reported allegation this time, the image the mother shared with S. a year ago, does not seem provocative or sexual content.’

ii. In the “Existing Strengths” part of the closing report, it states “there does not seem to be any worries of S. in her father’s care. She had seen him before the pandemic and there were no concerns. She has not had any in-person access in the past 3 years.”

iii. The Worry Statement outlined in the closing report included the following comments:

1. It seems that the mother may be influencing S. regarding not seeing her father, as she believes that he sexually abused S.

2. Since the father served court papers to the mother indicating he wants to resume in person access, allegations about physical discipline and sexual abuse are resurfacing from the mother.”

3. “If nothing were to change, S. would not have a meaningful relationship with her father and would believe her father is a bad person even though none of these allegations can be verified.”

i. The parties participated in the Clinical Intake process with reintegration therapist, Diana Polak, MSW beginning on March 27, 2023. The Clinical Intake Consultation (CIC) report, dated August 4, 2023, by Diana Polak, MSW, confirms as follows:

i. The mother believes that S.’s views and preferences with respect to contact with her father should be respected.

ii. S. met with Diana Polak and was aware that the meeting was related to her father and the existing contact problem. S. read from a piece of paper with the words “Memories” as the heading and began reading and sharing a litany of complains/concerns about her father, dating back to when she was 3-4 years old. Diana Polak observed S.’s right hand and right leg shaking; S.’s voice quivering and S. appearing visibly distressed when reading from this paper. S. also shared that she is allergic to peanuts and her father took her to the grocery store and walked in the peanut butter lane putting her health at jeopardy.

iii. When Diana Polak requested to read the paper S. was holding and had the paper in her hands, S. could no longer recall what else was written on the paper. S. said she had a “block” and her memory was not working.

iv. When Diana Polak asked S. to tell her about her memories, S. provided examples of negative memories she had from ages 3 onward. S. gave the example that when she was 3 years old, her father was angry and punched a wall because she had a headache, felt nauseous and did not want to be separated from her mother. S. reported that her mother and grandmother called the police.

v. S. asked Diana Polak to believe her and reported that she was afraid that her father would convince the court for her to see him, and he would take her away or hurt her as he had previously voiced he “wanted her to die”.

vi. Diana Polak explained to S. that her role was to help repair the relationship between her and her father and, to facilitate the contact, Ms. Polak would always be present during the clinical visits. Ms. Polak spoke to S. about meeting the father at the office and playing games during the visit. S. agreed.

vii. When Ms. Polak then attempted to arrange a meeting between S. and the father at her clinic, the mother delayed scheduling the meeting and reported she was waiting for another meeting to happen between S. and the CAS supervisor because S. had new memories which she was unable to disclose to the CAS on March 6, 2023.

viii. The mother advised Ms. Polak that she wished to retain a lawyer to represent S.

ix. The mother reluctantly agreed to bring S. to the office for a visit with the father on May 20, 2023.

x. On May 10, 2023, S. left Diana Polak a voice mail message that she was not willing to meet with her father.

xi. The father’s concerns about the mother’s restrictive parenting due to her excessive and irrational fears included: a) S. does not know how to ride and is not allowed to engage in contact sports for fear that S. will get injured; b) S. is not allowed to swim because the mother worries S. may develop an ear infection; c) S. is not allowed to attend field trips without the mother’s supervision for fear S. may eat an item she is allergic; d) S. is not allowed to walk in parks because she is allergic to birch trees and dogwood plants; and S. stays home during days of high pollen concentration.

xii. Ultimately, the mother agreed to bring S. to the father-child meeting at Diana Polak’s office on May 20, 2023. The mother was holding S.’s arm and massaging her back in what looked like her attempt to provide S. with comfort. S. told Diana Polak she was not going to meet with her father. Diana Polak requested for the mother to leave the building so she could have a conversation with S. The mother agreed to leave and stated she would be waiting outside the building at the main entrance. The mother left the building and stood outside looking through the glass windows. S. advised Ms. Polak that her father had hurt her and abused her. S. agreed to meet with the father upstairs with the condition that she would not speak to him. At that moment, the mother opened the door of the building, barged toward Diana Polak and S., positioned her body against S., held S.’s arm and placed herself side by side with S. The mother removed S. and stated she was going to the police to report the abuse S. had endured at the hands of the father and left the building.

xiii. The mother then advised Ms. Polak that she and S. did not attend the police station and, instead, went to celebrate S.’s birthday at Sky Zone. The mother told Ms. Polak that she had several concerns she wanted to share: that on Father’s Day, S. called the father three times, but he did not pick up the phone. Days later, the father then called back. The mother told Diana Polak that the father does not care anymore and rejects S.

xiv. The mother continued to voice concerns over the father physically hurting S. based on alleged historical incidents. The mother reported that S. feels nauseous and has somatic complains from having to see her father because of the historic abuse. The mother insists that S. is intelligent, articulate and has made a sole minded decision to not see her father in person or over facetime anymore. The mother believes that S.’s decision should be respected and the mother cannot physically make her see the father.

xv. The mother denied barging into the building. She then said she didn’t intend to barge into the building and requested that Diana Polak not report it.

xvi. On June 20, 2023, the mother contacted Diana Polak and told her and S. met with the police on May 31, 2023 to share the alleged historical incidents. The mother stated she was worried about the father’s mental health and risk of bipolar disorder based on information received by the OCL.

xvii. The father advised Diana Polak that on July 8, 15 and 22, 2023 the mother drove S. for parenting time to the agreed upon transfer place and S. rolled down her window and yelled “you hurt, I am done” while the mother drove away.

xviii. Diana Polak spoke with Dr. Chmiel, S.’s paediatrician who told her on July 6, 2023, S. reported to him that she does not want to have a relationship with her father but did not provide further information. Dr. Chmiel reported that over the years, the mother has shown an “hypochondriac behaviour” and has brought S. in for lots of visits to his office and the ER and the mother “worries about everything”.

xix. Diana Polak spoke with Dr. Lavine, S.’s allergist, who confirmed that she never directed the mother to monitor the concentration of tree pollen. S. is allergic to milk, peanuts and birth tree pollen. She confirmed that S.’s allergy to peanuts is not airborne which means the smell of peanuts is not dangerous.

j. The Clinical Analysis of Diana Polak concludes that:

i. in terms of the mother’s mental health, she states:

“Despite evidence from medical professionals, police, CAS, and OCL that indicate otherwise, Ms. Nguyen continues to strongly believe that Dr. Phong poses a risk to S.’s mental and physical wellbeing. Ms. Nguyen appears to dismiss information provided by professionals that do not verify her fears of physical, sexual, and emotional abuse. This profound and concerning departure from reality has resulted in S. being subjected to multiple invasive medical examinations over the years and excessive medical visits. Ms. Nguyen’s disregard of professional opinions has resulted in S. being subjected to several police and child protection investigations. Lastly, it has resulted in S. exhibiting fear of her father and resulted in a strained parent-child relationship with her father and her paternal family.” [Emphasis added]

ii. In terms of S.’s emotional/social wellbeing, she states:

The above-mentioned experiences and repeated investigations/forensic interviewing by police and CAS workers has impacted S. perceptions of reality and has placed her at risk of emotional harm. S.’s inability to engage in day-to-day activities (e.g., biking, swimming enjoying a park or outdoor sports) due to Ms. Nguyen’s fears presents as a risk to her mental, emotional, and social well-being. Dr. Phong appears to have been left out of S.’s medical appointments. However, while he raises significant concerns in Ms. Nguyen’s decisions for S. , he has not confronted her on them. [Emphasis added]

[30] Based on the relevant facts above, I find that there is sufficient evidence on the record before me demonstrating that the mother has engaged in a campaign of alienation against the father. A finding of parental alienation and the subsequent order must be determined on a case-by-case basis: C.(W.) v. E.(C.), 2010 ONSC 3575, 93 R.F.L. (6^th) 279, at paragraph 169.

[31] Parental alienation has been described as “a child’s strong insistence or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship”. Parental alienation is also “the notion that the child’s decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason.” Ciarlariello v. Luele-Ciarlariello, 2014 ONSC 5097, at para. 3; and K.F.M. v K.G.T., 2023 BCSC 1347, at para. 259.

[32] In A.M. v. C.H., 2019 ONCA 764, the Court of Appeal confirmed that parental alienation is a legal concept as opposed to a mental health diagnosis and, as such, the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.

[33] McKinnon, J., in Fielding v. Fielding, 2013 ONSC 5102, at paras. 134-137, accepted the expert evidence that parental alienation was established if the following four criteria were present: 1) there was a prior positive relationship with the targeted parent; 2) there is an absence of abuse by the targeting parent; 3) the alienating parent uses many of the alienating strategies; and 4) the child exhibits most of the alienated child behaviours.

[34] In paragraphs 108-109, in A.M. v. C.H., 2018 ONSC 6472, supra, Nicholson, J. set out the list of factors developed by experts to aid the court in identifying parental alienation. These factors, also known as indicators of alienation, have been cited in many cases,: L.(A.G.) v. D.(K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042, at para. 134 [G.(J.M.)]; Maharaj, at para. 140.

[35] The following are indicators of alienation, set out in A.M. v. C.H., supra:

Child Behaviours:

• View of parents one-sided, all good or all bad; idealizes one parent and devalues the other

• Vicious vilification of target parent; campaign of hatred

• Trivial, false, and irrational reasons to justify hatred

• Reactions and perceptions unjustified or disproportionate to parent's behaviours

• Talks openly to anyone about rejected parent's perceived shortcomings

• Extends hatred to extended family and pets (hatred by association)

• No guilt or ambivalence regarding malicious treatment, hatred, etc.

• A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent

• Anger at rejected parent for abandonment; blames him/her for divorce

• Speed is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality

• Stories are repetitive and lacking in detail and depth

• Mimics what siblings report rather than own experience

• Denial of hope for reconciliation; no acknowledgement of desire for reconciliation

• Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent

Alienating Parent Behaviours:

• Allows and insists that child makes decisions about contact

• Rarely talks about the other parent; uninterested in child's time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child's return from visit.

• No photos of target parent; removes reminders of the other parent

• Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant

• No encouragement of calls to other parent between visits; rationalizes that child does not ask

• Tells child fun things that were missed during visit with other parent

• Indulges child with material possessions and privileges

• Sets few limits or is rigid about routines, rules and expectations

• Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child

• No concern for missed visits with other parent

• Makes statements and then denies what was said

• Body language and non-verbal communication reveals lack of interest, disdain and disapproval

• Engages in inquisition of child after visits

• Rejected parent is discouraged or refused permission to attend school events and activities

• Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain

• Distorts any comments of child that might justify accusations

• Does not believe that child has any need for relationship with other parent

• When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent

• Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child

• Exaggerates negative attributes of other parent, and omits anything positive

• Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation

• Projection of own thoughts, feelings and behaviours onto the other parent

• Does not correct child's rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others

• Convinced of harm, when there is no evidence

• False or fabricated allegations of sexual, physical and/or emotional abuse

• Denigrates and exaggerates flaws of rejected parent to child

• Says other parent left "us", divorced "us" and doesn't love "us"

• Over-involves child in adult matters and litigation

• Child required to keep secrets and spy or report back on other parent

• Child required to be messenger

• Overt and covert threats to withdraw love and affection from child unless other parent is rejected

• Extreme lack of courtesy to rejected parent

• Relocation for minor reasons and with little concern for effects on child

[36] Based on the record before me, I find that S. has been subjected to parental alienation by the mother against the father.

[37] The alienating behaviours engaged in by the mother include:

a. Allowing and insisting that S. makes decisions about contact with the father and insisting that the father respect S.’s decision not to have contact with him. When the father’s lawyer wrote to the mother requesting in-person visits, she refused, claiming that “S. is almost 12 years old, she has her rights and her voice.”

b. The mother refused to comply with the parenting schedule set out in the November 2022 Diamond Order, claiming that S. does not want any contact with the father. Her various text messages state: “S. told me she has already told you that she does not want to meet you. I don’t know why you won’t listen and continue to pressure her to talk to you. You are causing problems for S..” “S. is a preteen now with her own ideas and preferences…The bottom line is S. does not want to meet you in person.” “S. told you repeatedly that she does not want to meet in person. She is old and smart to speak for herself.” The mother would send a voice recorded message from S. saying she does not want to see the father and insist that he respects her wishes.

c. The mother’s own evidence shows that she has no concern about the fact that S. had a positive relationship with the father before COVID-19 and now has barely any relationship.

d. The mother often refuses to comply with a court-ordered parenting schedule. She frequently refused to comply with the Kiteley Order, making false allegations of abuse. Recently, she refused to comply with the parenting schedule in the November 2022 Diamond Order, claiming that S. does not wish to see the father. The mother has been found in contempt as a result.

e. The mother has refused to set any boundaries or reprimanding S. for the rude defiant outbursts that she directs at her father, notwithstanding the November 2022 Diamond Order that requires her to “support and encourage S. to spend in-person parenting time with the father.”

f. The mother has held S. back from parenting time visits for minor medical issues and not getting her ready and on time for the father’s parenting time.

g. The mother’s body language and verbal/non-verbal communication shows disdain and disapproval. For example, the mother often referred to the father to S. as “this man”. She would ask S., “Do you want to go with this man?”

h. The mother has portrayed the father to S. as someone dangerous or someone to be feared. The mother has subjected S. to numerous invasive medical examinations and investigations by many different organizations in an effort to validate her allegation that the father sexually abused her. These examinations involved examination of S.’s anus and hymen and testing for sexually transmitted diseases, all with negative results. The OCL expressed concern that the repeated interviews, assessments and examinations, and the mother’s continued belief that S. was sexually abused, and her history of impeding access and undermining relationship between the father and S., can potentially lead S. growing up to believe she was sexually abused by her father. S.’s reintegration therapist, Diana Polak, concluded in her report that the mother’s “profound and concerning departure from reality resulted in S. being subjected to multiple invasive medical examinations over the years and excessive medical visits” and resulted in “S. exhibiting fear of her father and resulted in a strained parent-child relationship with her father and her paternal family.” Diana Polak concluded that the repeated investigations and forensic interviewing has “impacted S.’s perceptions of reality and has placed her at risk of emotional harm.

i. The mother has distorted and manipulated facts and history regarding the father’s participation and involvement in S.’s life. Even though the evidence is overwhelming that the father was actively involved in S.’s life, she continues to claim that he abandoned her.

j. The mother has fabricated false allegations that the father physically and sexually abused S. The CAST’s review of the child protection history shows that over the years since S. was 3 years old, there have been repeated concerns reported by the mother related to allegations of sexually abusive behaviour, sexual touching, and physical abuse by the father, none of which were verified. The mother would often make these allegations to the CAST or the police on the eve of the father’s parenting time in order to cause an investigation and to use it as grounds to deny parenting time. Most recently, on May 20, 2023, the mother made false allegations of abuse to the police. The mother’s lawyer then wrote to the father’s lawyer citing the police investigation as a reason to cancel the scheduled parenting time.

k. Once the CAST has completed its investigation, the mother would often make the same allegations to a different child protection agency in order to cause another investigation.

l. The mother terminated professional support for S. and socially isolated her. The mother unilaterally terminated Dr. Mirella Pugliese’s counselling for S. without the father’s consent because Dr. Pugliese was encouraging and supporting S.’s transition to in-person parenting time with the father. Although the mother claimed that S. did not want to continue with the counselling, Dr. Pugliese opined that terminating the therapy did not seem to be S.’s idea as she was expressing that she enjoyed sharing things with Dr. Pugliese.

m. The mother sabotaged the reunification therapy. According to Diana Polak, S. agreed to meet with the father for a session when the mother was not present. As Diana Polak was taking S. to the session with the father, the mother, who stood outside looking through the glass window, barged in and forcibly took S. away from Diana Polak, claiming that she would contact the police. The mother later met with Diana Polak and denied barging into the building. She then later changed her story and said that she did not intend to barge into the building and asked Diana Polak not to report it. This narrative is not disputed by the mother. Diana Polak concluded that the family therapy is not suitable as a result of the mother’s sabotage.

n. An example of the mother’s vilification of the father and distorting of the truth came when during a video call the father suggested to S. that she draw a cosmic dragon. When S. asked what a cosmic dragon was the father sent her a picture of a cosmic female character. The mother then reported to the CAS that the father showed S. a picture of a female’s private parts and asked S to draw it. The picture was not sexual in nature and there were no private parts on the picture.

[38] The alienated behaviours displayed by S. include:

a. S. has a one-sided view of the parents where the father has been vilified and devalued. S. rejects any interaction with the father. She told the CAST worker that her father forces her to see him and that she does not want to, that she does not speak to the father on Facetime anymore and that he “….lost his right to speak to me”, that she does not want to talk to her father “ever again”, and that she does not want any relationship with her father.

b. S. is rude, aggressive, and hostile towards the father without feelings of guilt or remorse. S. yells hurtful things to the father, that she hates him, that he is selfish, that he doesn’t love her, and that he is an abuser. She says things such as “my life, my choice, you’re out”, “you don’t know what’s good for me, the only thing you’ve been is bad.

c. S. has a distorted perception of reality as a result of the manipulation by the mother. S. now falsely believes that her father abused her physically and sexually. After investigation, the CAST concluded that the mother may be influencing S. as she believes that the father sexually abused her. Diana Polak also concluded that the mother’s departure from reality resulted in S. exhibiting fear of her father and having a strained parent-child relationship. Diana Polak reported to the CAST that S. was coached by the mother, that the mother does not want S. to see her father and that she is harming S., and that the mother is a “manipulator.

d. S.’s manipulated perception of reality is apparent in her allegations of abuse. For example, S.’s and the father’s cherished memory of dog sledding and walking on a frozen lake, has been turned into an abusive event in which he forced her to walk on a frozen lake. An innocuous event when the father took S. grocery shopping has been turned into an abusive event where the father forced her to walk across a nut aisle at a grocery store.

e. S.’s speech is artificial and appears coached. When the CAST interviewed S., the CAST worker reported that S. could not elaborate on what the context of the physical discipline was and that it appeared that the mother may be influencing S. regarding not seeing her father. The police who interviewed S. and the mother also reported that the way that the mother and S. were speaking sounded “…very scripted and rehearsed.” Diana Polak described that when she met with S., S. read from a paper a litany of complaints and concerns, but when she took the paper away from S., she could no longer recall what was written on the paper. S. shared with the CAST that she has “…some deep dark memories” but could not remember what they were. Liam Phong who was present during the access exchange also described So. as speaking in “mechanical, rigid tone.

[39] Now that I have found alienation by the mother against the father, I must turn to the third issue which is to determine the appropriate order.

Issue Three: Is it in S.s’ best interests for her primary care to be changed to the father, with an order that the mother have no contact with her for at least 120 days to address the parental alienation experienced by S.?

[40] MacPherson J. in C.(W.), supra summarized the available orders once alienation is found, as articulated by Dr. Fidler, as the following:

a. Do nothing and leave the child with the alienating parent;

b. Do a custody reversal by placing the child with the rejected parent;

c. Leave the child with the favoured parent and provide therapy; or

d. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.

[41] The mother argues that choice a. is appropriate, namely, there should be no change to S.’s primary residence or the decision-making regime, because S. is doing well in school, the CAST has not recommended that her living circumstances change, and an updated OCL parenting assessment is needed, along with a VOC report before this court should take such drastic steps.

[42] The father asks the court to choose choice b. and consider S.’s long-term best interests and make a reversal in S.’s residence to him because of the long-term harm that could be occasioned to S. of losing a meaningful relationship with her parent would be more serious than the short-term stress of altering her primary residence.

[43] The court has already tried option c. and the mother sabotaged that effort.

[44] There is no transitional placement for S. that has been proposed by either parent.

[45] There are several cases where the court, having found alienation, declined to order a change of custody. In Luo v. Le, 2016 ONSC 202, Charney, J. found that option c. was the best choice because a custody reversal could be a “recipe for failure and long-term resentment” due to the daughters’ dismissal toward the father and separation anxiety with the mother.

[46] Similarly, in G.(J.M.), Fryer, J. had to determine the best court of action to repair the father’s relationship with the child. In that case, the mother undermined and interfered with the father’s relationship with the child and limited the father’s visits. The father proposed sole custody for a period of 90 days and the Family Bridges program. Fryer, J. stated, at para. 181, that “the negative impact of completely removing these children from the care of the mother could outweigh the proposed benefits.”.

[47] However, there are also many cases where the court has recognized that a change in custody can be appropriate in parental alienation circumstances. Specifically, as detailed in C.(W.), at para. 168, “it may be in the best interests of children…to be removed from an alienating parent and placed with the rejected parent.” This has been echoed in numerous cases: Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14, at para. 108; McAlister, at para. 155; B.(S.G.) v. L.(S.J.), 2010 ONSC 3717, 102 O.R. (3d) 197, at para. 65 [B.(S.G.)]; Jennings v. Garrett (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), at para. 135.

[48] In Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, the mother sought sole custody of their child, Jayden, on the basis of alienation. At the time of the hearing, the parties had joint custody of Jayden. Trimble J. made the following findings, at para. 77:

The evidence supports the conclusion, and I so conclude that Mr. Wilfred-Jacob has manipulated Jayden, telling him that his mother drinks and smokes marijuana, wants to take Mr. Wilfred-Jacob's property and money, and has stolen Jayden's money and Jayden's gold. He has manipulated access to suit himself.

[49] Due to these findings, Trimble J. ordered full custody to the mother and access to the father.

[50] In B.(S.G.), the mother brought an application for sole custody of the son. The fact that deliberate, irrational alienation occurred in this case was not in dispute – both the arbitrator who conducted the arbitration for the parties and the judge who heard the appeal found alienation. At issue in this case was the appropriate solution. Mesbur J. found, at para. 65, that “in cases of severe irrational alienation, the alienated child must be removed from the favoured parent for a time.” Therefore, Mesbur J. ordered sole legal and residential custody to the mother as well as the authorization to obtain treatment at the Family Bridges program: a Workshop for Troubled and Alienated Parent-Child Relationships.

[51] In L.(A.G.), the father applied for sole custody of the three children with no access to the mother due to alienation. After evidence from Dr. Fidler, an expert in alienation, McWatt J. (as she then was) found that the mother had alienated the three children from their father; this amounted to emotional abuse. McWatt J. found that this alienation was neither reasonable nor warranted. The mother was unwilling to help rectify the situation and instead, she contributed to it. McWatt J. found that the mother consistently used the police to thwart the father’s access and she moved further away from the father to hinder their children’s relationship with the father. McWatt J. ordered sole custody to the father with no access by the mother, except for the purpose of counselling, pending a review of the matter.

The Law

[52] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), is the applicable legislation. Under s.16.1(2), the court may make an interim parenting order in respect of the children pending the hearing of the parent’s application.

[53] The court has the jurisdiction to make broad ranges of parenting orders under s.16.1(4) and (5), including allocating parenting time, allocating decision-making, setting out requirements about the means of communication, and providing for any matter the court considers appropriate. The court may also make an order for a definite period or indefinite period or until a specific event occurs, and may impose terms, conditions, and restrictions that it considers appropriate.

[54] The sole consideration in determining parenting decisions is the best interest of a child. Section 16(2) states that when the court considers the best interest factors set out in s. 16(3), the primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being. Section 16(3) reads as follows:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

d. the history of care of the child;

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

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

g. any plans for the child’s care;

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

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

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

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

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

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

The Ability and Willingness of any person who engaged in Family Violence to care for and meet the needs of the child

[55] As Justice McGee points out in S. v. A., 2021 ONSC 5976, the issue of family violence has always been an important consideration for the court, albeit one more focussed in light of the 2021 amendments to the Divorce Act.

[56] Justice McGee points out at para. 26, that the post-separation conduct of a parent who has failed to allow the children to have separate feelings for their other parent can be seen as a form of controlling family violence as well.

[57] When considering the conduct of a parent whose conduct unjustifiably estranges a child from the other parent, the Divorce Act’s family violence provisions can be read together with s. 16(3)(c) and (i). Those provisions deal with a parent’s “willingness to support the development and maintenance of the child's relationship” with the other parent, and the parent’s “ability and willingness … to communicate and cooperate [with the other parent] … on matters affecting the child.” As Justice McGee explained at paras. 29 – 30 of S. v. A:

Children are entitled to develop the best relationship possible with each of their parents, independent of the relationship between their parents. As referenced in Malhotra v Henhoeffer, 2018 ONSC 6472, citing the work of Dr. Fidler, children who are caught in a cycle of unjustified rejection are more likely to suffer from low self-esteem, self-hatred, self-blame, guilt and substance abuse problems.

[58] In Bors v. Beleuta, 2019 ONSC 7029, affd. in Bors v. Bors, 2021 ONCA 513, Justice van Melle adopted this statement by the court appointed assessor, Dr. Michael Stambrook in L.M. A.M., about the abusiveness of parental alienation:

It is an abusive practice. It is child abuse when it occurs. It's emotionally abusive. It cripples and stunts children's development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.

[59] Considering my finding that the mother has engaged in a practice of parental alienation against the father, I find that her conduct amounts to family violence and seriously impacts her ability to care for and meet the needs of S. Further, I am persuaded that it is not appropriate to make an order that would require the mother to cooperate on issues affecting S.

Parental Contact Principles

[60] Paragraph 16(6) of the Divorce Act enshrines the principle that children should have as much time with each spouse as is consistent with the best interests of the child. I am persuaded that it is contrary to S.’s best interests, and indeed harmful to her, to become unjustifiably estranged from the father whether the result of alienation or a combination of factors: G.(J.M.), at para. 99: Cantave v. Cantave, 2014 ONSC 5207, 49 R.F.L. (7th) 368, at paras. 64-65; J.K.L. v. N.C.S., 2008 CanLII 30289 (ON SC), 54 R.F.L. (6th) 74, at para. 126; C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14, at para. 7.

Past Conduct

[61] Section 16(5) of the Divorce Act mandates against considering past conduct unless that conduct is relevant to the ability of that person to act as a parent to a child. I find that the mother’s past alienating conduct in 2016 and her current alienating conduct reflects an inability to adequately parent and an inability to place S.’s needs and best interests ahead of her own need to vilify the father.

Spouse’s willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Spouse

[62] The mother’s affidavit evidence is clear that she believes the father has abused S. and that she fears him. She is also clear that she believes S.’s wishes to have no relationship with the father should be followed and respected. The mother has taken steps to oust the father from S.’s daily lives and given these findings, I have absolutely no confidence that the mother will take any steps to preserve any relationship between the father and S., let alone promote a meaningful relationship, between S. and the father. She has already demonstrated otherwise.

The Child’s needs

[63] The mother does not hide the fact that she sees no benefit to S. having a relationship with the father. She has taken steps to vilify the father to S. and has poisoned S. against the father, letting her believe that the father has abused her despite no verification from any authorities that such abuse took place. While S. does appear to be doing well in school, there is evidence that the mother has a restrictive way of parenting due to her own anxieties that is not in S.’s best interests. This has been demonstrated by her unilateral termination of S.’s therapy when S. had had the benefit of Dr. Pugliese for 6 years. I question the mother’s ability to meet S.’s needs and to act as

a parent.

The Child’s Views and Preferences

[64] While I acknowledge that S. has made her views and preferences clear, namely, that she does not want to see the father or have a relationship with him, I decline to give weight to S.’s expressed views and preferences. When there is a finding of parental alienation, little weight should be given to the child’s wishes: A.M. v. C.H., 2018 ONSC 6472, at para. 156. For these reasons, I dismiss the mother’s motion for a VOC report.

The Child’s Need for Stability

[65] I am also to consider the length of time the child has lived in a stable home environment and the permanence and stability of the family unit with which it is proposed that the child will live. Although the current circumstances of S. having lived exclusive with the mother and the maternal grandmother and having no contact with the father has existed for 3 years. I do not find that the status quo amounts to a stable home environment for S. Further, there is no presumption that the status quo will dictate the future parenting regime.

[66] As Nicholson, J. stated in A.M. v. C.H., supra, I believe it would be wrong for me to focus mainly on the short-term difficulties that would result from a change of custody for S. I have no doubt that S. will initially struggle tremendously with the order I am making. However, continuing with the status quo in my view will not only result in a termination of S.’ relationship with the father, but it will be detrimental to her emotional development in the long-term to continue to be exposed to the destructive parenting of the mother. The long-term detrimental impact on S. of a permanently severed relationship with her father and ongoing exposure to the mother’s insistence on vilifying him far outweighs the emotionally challenging but temporary adjustment to living with the father and short-term difficulties of having no contact with the mother.

[67] The harmful effect of parental alienation on children is well documented. In Epshtein v. Verzberger-Epshein, supra, the court stated that the children are entitled to develop the best relationship possible with each of their parents, independent of the relationship between their parents, and found that the conduct of a parent who failed to allow the child to have separate feelings for her other parent is a form of controlling family violence.

[68] In M.S. v. K.A., 2021 ONSC 7853, at para. 125, the court noted the harmful effects of alienation on children from an expert testimony. The court noted that adults who were alienated from a parent as a child suffered depression in 70 percent of the individuals studied. Two thirds of the same population became divorced themselves – a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives and difficulties trusting other people. One third were reported to have substance abuse problems. Fifty percent of this group became alienated from their own children. The court also noted that the bulk of those involved had wished that “someone had called them on their strong wishes and statements not to see the other parent”, but that they could not do it themselves. They could not reverse their public stance against the alienated parent, but wished someone else would make the decision for them that they had to see that parent. This way, the child could “save face”.

[69] It is well known that parental alienation cases require an urgent intervention. In M.S. v. K.A., the court accepted the report from the OCL that there is urgency for a therapeutic intervention to address the break in child-parent contact. The delay and the passage of time are obstacles in ameliorating the resist-refuse dynamics, at para. 132.

[70] In Malhotra v. Henhoeffer, 2018 ONSC 6472, at para. 104, the court stated: where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

[71] In Epshtein v. Verzberger-Epshein at paras. 139-141, which involved parental alienation of children who were 12 and 9 years old, the court found that the situation was urgent due to the children’s ages. The older they get, the more difficult it will be to change their habits or thoughts about their father as they gain increasing agency about their parenting decisions. In the case at hand, S. is 12 years old. Urgent judicial and therapeutic intervention is necessary to avoid further harm to S. as she gets older.

[72] I adopt the comments of Nicholson, J.’s decision in S. v. A., regarding the options of a blackout period and parenting reversal,

32. When a reversal of decision-making and primary residence is ordered, courts may also order that the alienating parent have no contact with the child for a minimum period: see M.M.B (V.) v. C.M.V.,, 2017 ONSC 3991; Foley v. Foley,2016 ONSC 4925. A “cooling-off period” should be ordered with no contact to the alienating parent when the parent will not comply with therapy, see Yousufy v Yousufy, 2019 ONCJ 791.

33. In my view, a reversal of primary care is the most difficult of parenting decisions. It is an option that must be approached with caution, and each case must be considered on its own facts. A reversal is not a vindication of which parent is right or wrong. It is a finding as to which parent can best provide physical, emotional, and psychological safety and security to a child in distress. Which parent will best protect the child from the conflict and place the child’s well-being above the litigation “win.”

[73] In C.C. v. S.C., 2022 ONSC 2306, at paras 38 to 40, which involved an 11-year-old child who was being alienated by the mother with false allegations of abuse, the court accepted that a drastic order is needed to protect the child. The court ordered a reversal of residence to the father, with a 3-month period of suspension of parenting time with the mother.

[74] In Malhotra v. Hoenhoffer, the trial judge concluded that if the child is left with the mother, they would not participate in any reconciliation therapy and that they may completely disobey any access order. The trial judge found that if the child is left in the custody of the mother, alienation of the father, which amounts to emotional abuse, will continue and the child’s relationship with the father will be permanently severed. The trial judge found that such a result cannot be tolerated and that the child’s long-term best interest must be considered. As a result, the trial judge ordered reversal of custody, with a period of no-contact with the mother, which was the only way to guard against the ongoing negative influence from the mother and to ensure the best possible success of re-establishing the relationship with the father.

[75] In K.K. v. M.M., 2021 ONSC 3975 at para. 750., the court was convinced that while separating the child from the favoured parent would have an emotional impact on the child, the child nonetheless needed to be removed from the poisonous atmosphere of the alienating parent’s orbit. The court concluded that his best interests necessitated living with the alienated parent, with no-contact with the alienating parent for a temporary period of time.

[76] In Malhotra v. Hoenhoffer, at para. 167. aff’d in A.M. v. C.H., 2019 ONCA 764, at paras. 24-27, the court held that it would be wrong to focus mainly on the short-term difficulties from the change of custody for the child. The court found that while the child may initially struggle with the reversal of residence, continuing with the current status quo will not only result in a termination of the child’s relationship with the alienated parent, but will also be detrimental to the child’s emotional development in the long-term to continue to be exposed to the destructive parenting of the mother. This finding was upheld by the Court of Appeal.

[77] Similarly, in A. (A.) v. A. (S.N.), 2007 BCCA 363, at paras. 25 to 28. 53, the B.C. Court of Appeal held that it was a reversible error of law for the court to focus on the short-term difficulties of custody reversal and leave the child with an alienating parent without considering the long-term damage to the child, which was almost certain, of remaining under the alienating parent’s care.

[78] In the case at hand, the short-term disruption to S. will no doubt be difficult. However, 3 years ago, S. was used to staying over at her father’s place. The father intends to keep S. in the same school and ensure that she attends the same extra-curricular activities. S. just began in-person school in September 2023. Any short-term difficulties S. may face can be assisted by therapeutic support and professional assistance.

[79] The father proposes to engage in the Building Family Bridges program during the 120-day black out period, which is a 4-day intensive workshop to re-establish the damaged father-daughter relationship. Building Family Bridges has been ordered with approval in severe alienation cases. In M.M.B. (V.) v. C.M.V., 2017 ONSC 3991, at paras 956, 1098, and 1205the court quoted from research that in severe alienation cases, including those whose previous therapy has not been effective, a program such as the Building Family Bridges may assist the alienated children and rejected parent after the court orders a reversal of custody. The court in that case ordered Building Family Bridges program as a restorative measure. In S.G.B. v. S.J.L., 2010 ONSC 3717, at paras. 125 to 127. after hearing from the experts, the court concluded that in a case of alienation, the child must be removed from the care of the alienating parent and found that the Building Family Bridges workshop was the only hope to find a way to repair the child’s relationship with the mother.

[80] Similarly, in A.G.L. v. K.B.D., 2009 CanLII 943, the court ordered Building Family Bridges as an appropriate therapeutic program to assist in re-establishing the child-parent relationship. The court in Bouchard v. Sgovio, 2021 ONSC 1055, at paras. 89 to 91 and 94 to 95, also ordered Building Family Bridges in a case of severe parental alienation with no-contact with the alienating parent and a restraining order to prevent that parent from sabotaging the program. In X. v. Y., 2016 ONSC 545, at paras. 103, 184, 56, the court found that there was a severe alienation and concluded that a reunification plan must commence immediately, which included the Building Family Bridges Program.

[81] In this case, Diana Polak has classified this case as a “severe case of parent-child contact problem” and recommended “a court order which considers the options for managing severe contact problems.” I am persuaded that the father’s proposal that an intensive workshop such as the Building Family Bridges is necessary to address the severe alienation in this case.

[82] The mother, instead of offering a plan to re-establish S.’s relationship with the father, seeks in her cross-motion, the involvement of the OCL under s.89(3.1) and s.112 of the Courts of Justice Act, and in the alternative, a VOC Report and s.30 assessment. The mother previously sought an order for referral to OCL and a VOC Report in a cross-motion in response to the father’s contempt motion. Akazaki J. heard the motion on January 13, 2023. In denying the mother’s request for a VOC report, Akazaki J. held that “there is no place for a child advocate if the purpose of the referral is to help the child continue an unhealthy course of behaviour.”: Phong v. Nguyen, 2023 ONSC 514, at para. 32. Similarly, in C.C. v. S.C., 2022 ONSC 2306, at para 30, the mother sought to have the child’s voice heard. The court rejected this suggestion and held that encouraging false allegations is not supporting the child. I agree. The mother’s motion for a VOC report is hereby dismissed.

[83] I also dismiss the mother’s motion for an updated OCL parenting assessment or a s.30 parenting assessment on the basis that this matter has already been delayed by the mother’s conduct and to delay the transfer of S.’s primary residence any further is not in the child’s best interests. In Bouchard v. Sgovio, 2021 ONSC 1055, at paras. 89 to 91, the alienating parent argued that an order should not be made without an assessment. The court rejected this argument, noting that the alienating parent has already delayed this matter by undermining the therapeutic process. It is common for alienating parents to claim that the court needs to hear what the child has to say. The court noted in M.M.B. (V.) v. C.M.V., 2017 ONSC 3991, at para. 954, that often, alienating parents will state that they will not or cannot force the child to have contact while noting that the child has a right to make up their own mind about whether to have contact with the other parent, which echoes the mother’s claim in this case.

[84] In Malhotra v. Henhoeffer, 2018 ONSC 6472, at para. 145 to 146, the court held that when there is a finding of parental alienation, little weight should be given to a child’s wishes, as the child’s preferences are not her own but are those of her mother. In the case at bar, S.’s views have already been profoundly impacted by the mother’s vilification of the father. The mother’s sole purpose in seeking a VOC report is to justify her position that S.’s rejection of the father should be respected. As the Court of Appeal stated in A.M. v. C.H., at para. 75, when a court finds that a child’s mind has been poisoned and her views are not independent, the court is entitled to put no weight on the child’s wishes.

[85] If S. is left with the mother, both the mother and S. have made it abundantly clear that they have no desire to participate in reintegration therapy with a view toward reconciliation. Neither the mother nor S. will comply with any order for reintegration therapy and/or attempts to reconciliation. Instead, I expect that the mother and S. will completely discovery any parenting order I make, as they did with the November 2022 Diamond Order and the January 2023 Diamond order.

[86] If S. is left with the mother, alienation of the father, which amounts to emotional abuse, will continue. The relationship between S. and the father will be permanently severed. Such a result ought not to be tolerated. S.’s long-term best interests must be considered.

[87] The father has demonstrated that he will keep S. in the school she started at this September 2023. The father submitted that he has secured a rental property just across the street from S.’s school. The father’s nephew will help with the pick ups and drop offs of S. at school. The Aftercare Professional will help S. be reintroduced to the mother, after the reunification therapy has started. Further, the father has committed to keeping S. in all of her current extra curricular activities.

[88] Based on the above, S.’s primary residence will be reversed. I do not find that simply returning to the status quo, leaving S. with the mother, without further and timely intervention is an appropriate option. S. would likely never voluntarily see her father again, continuing to justify her rejection with a narrative of alleged paternal abuse. That leaves me with one option: a temporary parenting time reversal and a blackout period. While this kind of order is a last resort, this may well be that last resort. It cannot wait until the father’s Motion to Change is heard.

[89] The only way to guard against any ongoing negative influence from the mother and to ensure the best possible success of re-establishing the relationship with the father is to suspend contact between S. and the mother temporarily. On the assumption that S. will desire to re-establish a connection with her mother, I will order that S. participate in therapy as a condition to the court considering re-establishing contact with the mother upon review of this matter. In order to ensure compliance with this order, police enforcement will be necessary.

[90] I agree with the father that the blackout period should be for 120 days, but it should be subject to regular reviews to see how it is progressing and whether it should be expanded or contracted. Those reviews must look to the extent that each party follows the therapeutic advice of the Aftercare therapist. Each parent must play their role. The mother must be open to altering her perspective of the father to allow S. to fully accept him as a safe and loving father. For the sake of S., the mother must work closing with Family Bridges and the Aftercare therapists and follow their directions.

[91] The father must also be sensitive to S.’s particular needs as a 12-year-old girl. The mother, cannot now, during the blackout period I order below, attend S.’s school or see or communicate with S. outside of the bounds of my order, as set out below. If either party fails to meet the expectations set out above, I may have to change the terms of this order when the parties appear before me, or another judge may have to, to review the progress of the blackout period.

ORDER

[92] Accordingly, I order that the 2017 Final Order is temporarily stayed, as is the November 2022 Diamond order is stayed, and its parenting terms temporarily varied as follows:

a. For a period of at least 120 days or until further order of this court or agreement of the parties,

i. The child, S., shall be placed in the primary care of the father.

ii. The father shall be responsible for all decision-making for the child.

iii. Other than as set out below, the mother shall not attend the father’s home, S.’s school, or any place she knows the child to be present. Nor shall she communicate, whether directly or indirectly, electronically, or virtually with the child. This means the mother shall not spend any time with S., whether in person or via electronic means.

iv. The father may retain any therapist, counsellor, psychologist, or other professionals and obtain any treatment, counselling, or therapy for S.at his sole decision as he deems necessary and appropriate for S.’s interests, including any reintegration therapy, individual counselling, or intensive reunification programs such as Building Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships.

v. Erin Powley shall be appointed as the Aftercare Professional to conduct aftercare services to S. and the parties. This Aftercare Program is a phase of the Family Bridges Workshop which was ordered herein and any additional order of the Court to enable the After Care Professional to carry out the said aftercare phase or that is in the best interest of S. The After Care Profession will support and supervise the ongoing progress after the Building Bridges workshop and support and educate the mother for resumption of contact with S. If necessary, the Aftercare Professional will provide a report to the court. The mother shall cooperate with the Aftercare Professional and participate in the Aftercare curriculum.

vi. The parties shall sign any consent to release of information within 48 hours of a request being made.

vii. The mother shall not contact or communicate, or attempt to contact or communicate, in any manner with S., including but not limited to face-to-face conversation, telephone contact, email contact, Facebook contact, text messages, or by any other means of social media or smart phone app, or indirect contact through other family members, friends, or third parties by these or any other means.

viii. The mother shall ensure that her extended family, her friends, her current or future partners, do not contact or interact with S. in any manner, directly or indirectly.

ix. The father may, at his sole discretion, confiscate and prevent S.’s use of cell phone, iPad, computer, or other communication devices.

x. During the 120-day period, the father shall ensure that S. attends her current school and continues to attend all of the extra-curricular activities in which she is enrolled.

xi. The mother shall be prohibited from being within 500 meters of the father’s and S.’s home, the father’s workplace, the father’s vehicle, S.’s school, therapy/counselling location, intervention location, or any other place S. is or is known or believed to be or can be reasonably expected to be.

xii. The mother shall not be entitled to obtain information directly from S.’s education or health care providers during the 120-day no contact period.

b. The mother shall deliver the child’s Canadian passport as well as her OHIP card, birth certificate and any other government-issued documentation to her lawyer within two days of the release of this Endorsement. Her lawyer shall immediately thereafter deliver those documents to the father’s lawyer, to release them to the father.

c. The father is not obligated to disclose to the mother the location or nature of the interventions the father seeks for S., in order to protect S. and the intervention from intrusion, interruption and harassment by the mother.

d. The issue of proportionate sharing of the costs of S.’s counselling, therapy, or treatment, including reintegration therapy, individual counselling or intensive reunification programs, shall be determined at a later date.

e. The mother shall bring S. to the father in accordance with paragraph f. below. The father shall have primary residence of S. for a minimum of 120 days to facilitate the restoration of his relationship with S.

f. The mother shall bring S. and S. is so ordered to attend the Court on October 16, 2023 at 9:00 a.m. when the decision of this motion is to be released.

g. Neither party shall inform S. of the provision of this order before bringing the child to the courthouse and delivering her into the care of the father.

h. The father shall provide weekly electronic written updates to the mother regarding S., including pictures once a month.

i. The mother shall arrange for a third party to deliver to the father S.’s belongings, including but not limited to clothing, shoes, toiletries, school supplies, books, cellphone/laptop/iPad and other tech items, toys and other comfort items, medications, and any other belongings that S. may reasonably need during the 120 day period, within 5 days of the date of this Order. The delivery shall be at the mother’s expense.

j. Within the 120-day black-out period, the father may travel with S. outside of Ontario or Canada without the written consent of the mother.

k. Within the 120-day black-out period, the mother shall be prohibited from removing S. from the Province of Ontario or Canada without the written consent of the father or court order.

l. Within the 120-day black-out period, the mother may have parenting time with S., the time, location, manner and frequency of which shall be determined by the father in consultation with the Aftercare Professional and/or S.’s reintegration therapist/counsellor.

m. If the mother has any contact, direct or indirect, with S. during the 120-day no contact period in breach of this Order, the 120-day period shall begin again from the date of contact.

n. The Toronto Police Service, or any other police force in Canada, shall take steps to enforce this Order.

o. The Toronto Police Service, or any other police force in Canada where S. is located, shall do all reasonable things to assist the father to locate, apprehend, and deliver S. in order to ensure compliance with the terms of this Order herein. At any time of day, a police officer may enter and search any place where he or she has reasonable and probable grounds for believing S. may be, with such assistance and with as much force as are reasonable in the circumstances.

p. A copy of this Endorsement and Order shall be provided to any police officer, Children’s Aid Society, or any other law enforcement agencies or child protection agencies if the mother or any other third-party report or attempt to lay criminal charges or report protection concerns to child protection agencies against the father.

q. The Toronto Family Law Team Leads, Justices Shore and Diamond, shall appoint a case management judge to be assigned to this matter. The case management judge shall determine whether the blackout period should be extended or ended after 120 days. The parties shall attend before the case management judge at approximately 30 or 60-day intervals following the release of this Endorsement to review the progress if the parenting arrangements and the reconciliation therapy. The parties shall file updated reports for each of those appearances from the therapists involved with the family. The parties shall equally share the costs of those reports.

r. The terms of this Order may be reviewed at the request of either party after the 120-day period, except if there has been a breach of the no-contact provisions set out herein by the mother, her requested review shall take place no earlier than 120 days from the date of the last breach. The date for the review shall not be set until the court is satisfied that the review is appropriate based upon the reports from therapists retained by the father.

s. The review will take the form of a long motion. The court will determine if viva voce evidence will be required at the motion upon review of the affidavits and facta filed.

t. During the 120-days, the father shall engage in individual therapy to assist him in all aspects of parenting.

u. The court shall not undertake a review of the parenting provisions of this order until the mother engages and meaningfully participates in therapy to gain insight into her alienating behaviour and work towards supporting reconciliation between the father and S.

v. For the purposes of the review, the parties shall file reports from all therapists engaged as outlined above. The reports shall be filed and sent to the case management judge’s attention by February 11, 2024.

w. The mother’s cross-motion for a VOC report and/or an updated OCL parenting assessment and/or a s.30 parenting assessment is hereby dismissed.

x. The mother’s consent regarding the approval of this draft order is hereby dismissed. This order shall be issued and entered on an urgent basis.

y. If the parties cannot agree on costs, the parties shall file costs submissions of no more than 3 pages, not including offers to settle and bills of costs without 21 days for the father and within 28 days for the mother. The father may file a reply of no more than 1 page within three days of receiving the mother’s submissions.

Justice M. Kraft

Released: October 16, 2023