Court File and Parties

COURT FILE NO.: FC-14-00000204-0001 DATE: 20240529 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brendon McEniry, Applicant AND: Katherine Laird, Respondent

BEFORE: Madam Justice Kerry McVey

COUNSEL: Deanna Paolucci, for the Applicant Karla Policelli, for the Respondent

HEARD: May 1, 2024

Endorsement

Introduction

[1] The parties were married in August 2008. They have two children together: Abigail Isobel McEniry (“Abi”), born on June 25, 2009, and Samantha Shellie McEniry (“Sammy”), born on October 12, 2011. The parties separated in January 2014. Since that time, their relationship has been marred by intense litigation, dysfunction, and conflict. The Office of the Children’s Lawyer (“OCL”) has been involved with the family on three separate occasions.

[2] In January 2024, the Respondent mother sought relief to address the Applicant father’s pattern of alienating behavior regarding their eldest child, Abi. At the time the motion was heard, despite a final Order in place dated November 2020 setting out a week-about parenting schedule, the Respondent mother had not seen Abi in two years and four months.

[3] On February 1, 2024, this Court granted sole decision-making responsibility regarding Abi to the Respondent mother on a temporary basis. This Court further ordered that the Applicant father was to have no contact with Abi until further Order of the Court. Abi was to reside solely with the Applicant mother. Sammy was to continue with the week-about parenting arrangement as per the existing final Order: see McEniry v Laird, 2024 ONSC 653.

[4] In my February endorsement, I indicated that I would reassess parenting time and other related matters within 90 days. Importantly, I emphasized that for increased parenting time with the Applicant father to be in Abi’s best interests, he would have to “meaningfully engage in counselling” to gain a better understanding of how his past decision-making and conduct aggravated the conflict between Abi and her mother.

[5] The Respondent mother seeks to maintain the status quo respecting Abi on a temporary basis. She also seeks primary care of Sammy, with the father exercising parenting time on alternate weekends, and sole decision-making responsibility for Sammy on health-related issues and tutoring. Finally, the mother seeks an Order that the father pay half of the ongoing reunification counselling costs.

Developments since February 1, 2024

Abi

[6] After the release of my endorsement on February 1, 2024, the Court received a letter from Abi via email on February 14, 2024. Among others, the email was sent to my judicial assistant. The identity of my judicial assistant is not publicly available information. At the outset of this return motion, I asked counsel whether anyone had any information about how a 14-year-old child might obtain the name of my judicial assistant for the purposes of sending me a letter. Unfortunately, no one had any insight into how she obtained that information. To be clear, the Court takes no issue with receiving correspondence from Abi. The concern was whether someone prompted her to do so and in so doing provided her with the name and contact information of my assistant. That would naturally be of significant concern in the context of this case. In her letter, Abi expressed predictable frustration and anger with my endorsement and asked that I allow her to return home with her father.

[7] The Court received a second letter from Abi as part of the return motion materials. It is undated. Abi again conveys justifiable frustration over her present circumstances. She wishes to return to her father’s primary care and reiterates that she does not view “Kate” as her mother. She further writes that she is “so sick and tired of you people making decisions for me without even hearing what I have to say first just because I’m a kid”.

[8] As I have with all of Abi’s input conveyed to date through various channels (e.g., OCL clinicians, social workers, directly from Abi via letter), I have given her views strong consideration when determining what may be in her best interests at this time. Disagreeing with her views is not the same as dismissing them. I reiterate and reemphasize that though Abi’s views are very important, they are not dispositive. This is particularly true here given that Abi’s attitude towards her mother has been repeatedly and negatively influenced by the inappropriate and short-sighted conduct of her father.

[9] Since Abi has returned to her mother’s care, she has re-established relationships with her stepsiblings and maternal grandparents, with whom she was once very close. Her relationship with her mother remains strained but there are positive signs of progress. One-on-one reunification counseling commenced on April 22, 2024, just days before this motion was heard.

[10] Abi has been seeing Lisa Loeffen, a social worker at Renew Supervision Services, for one-on-one traditional as well as equine-assisted sessions on a weekly basis. In an updated progress report dated April 14, 2024, Ms. Loeffen writes that Abi was naturally shocked by the court-ordered return to her mother’s care, but that she is now processing the change with “great maturity”. Ms. Loeffen notes that Abi has reintegrated into her mother’s home “much more quickly than [she] anticipated”. Ms. Loeffen notes that Abi has begun to engage with her mother and has re-discovered that they share some common values and interests. Abi has also conveyed to Ms. Loeffen that through discussing matters with her mother, she has obtained “clarity on some issues”. Abi is now willing to participate in facilitated sessions with her mother.

[11] Abi continues to express a strong preference to live with her father and struggles with being unable to see him and his partner. Notably, Abi told Ms. Loeffen that she is concerned that reuniting with her mother might hurt her father’s feelings:

Abigail remains firm on waiting to live with her father and continues to struggle with not being able to see him and his partner. One of Abigail’s concerns is around hurting Mr. McEniry’s feelings. Abigail expressed worry about Mr. McEniry feeling hurt and that she would be making him sad if she was having fun and reconnecting with Ms. Laird and family members. Abigail continues to work through her thoughts, feelings and beliefs and is able to identify that this is not a weight she should carry, although, in sessions, this writer observes that this does continue to weigh on her. Abigail is able to voice some strategies such as knowing her dad loves her no matter what and that she is allowed to have a relationship with both however, she is still trying to navigate how to reconnect with Ms. Laird all the while reducing her stressful worries that this is going to hurt Mr. McEniry.

(Progress Report from Lisa Loeffen, p. 7)

[12] This passage drives home the significance of the Applicant father attending counseling and obtaining insight into how his conduct may influence Abi’s views. It is telling that Abi feels that her father would be saddened should she salvage a relationship with her mother. In my view, the Applicant father has failed to communicate, through both words and action, that he truly wishes to see Abi reunite with her mother and that this would cause him relief and happiness rather than sadness. As I will address further below, the father has expressed little to no interest in learning how to convey this to Abi such that this emotional obstacle standing between Abi and her mother can be removed. The father withdrew from reunification counseling in the summer of 2023 despite both Renew Supervision Supervises and OCL recommending that he continue. The father possesses tremendous power and influence over Abi yet unfortunately refused to wield it in favor of positive change.

[13] The Respondent mother continues to attend individual counseling to address stressors associated with PTSD and her prior estrangement from Abi and to better prepare her to navigate a successful reunion with her daughter. In my view, the mother continues to do everything in her power to facilitate a positive relationship with Abi.

Counseling attended by Applicant father

[14] On the motion, the Respondent mother filed numerous emails that were exchanged between Abi and her father in October 2021, shortly before Abi cut all ties with her mother. To set the context, the email exchange began on Friday, October 22, 2021, at the commencement of the mother’s parenting week. The mother was to pick Abi up from school as per the regular routine. The mother had asked the father via Our Family Wizard not to interfere and allow her space to deal with Abi.

[15] The father testified at the motion regarding these emails because they were filed late, and he had not had a chance to respond. He testified that he had arranged for another parent to pick up Abi at school on the Friday as he was out-of-town. He acknowledged that this would have been during the mother’s parenting time. When asked by the Court whether he advised the mother that he had done so, he testified that he did not. When asked by the Court why he would arrange for another parent to pick up a 12-year-old child during the other parent’s parenting time and not advise the other parent in advance, he responded that “Abi did not want him to”. This behavior alone speaks volumes about whether the father was truly interested at that time in de-escalating the conflict. He evidently was not. As one might predict, having another adult attempt to pick up Abi with no notice to the mother did not go well. Eventually, after the school became involved, Abi agreed to go home with her mother.

[16] The father emailed Abi at approximately 16:00 in the afternoon asking her if the mother “forc[ed]” Abi to go with her. This language is highly charged and inappropriate. The following day, Abi advised her father that her mother took her computer and phone away. The father responded, “Are you serious? That is terrible”. He told Abi to “Ge [sic] them back Abi. They are yours” and that the mother had “stolen” them from her. The father repeatedly encouraged Abi to leave and that he would pick her up if she wished. On the Sunday, he told her to “run down the street to me if you are scared still”. There was no indication in the messages that Abi was scared, nor is there any evidence before me that Abi was anything but safe in her mother’s care. The father repeated, “Tel [sic] me what you want and need. I will always protect you and keep you safe”. These messages were clearly manipulative.

[17] Abi responded and indicated that she would “stay there” because her mother and her partner were being “less annoying right now”. Though she was careful to point out that she still wanted to be with her father “full time”. Even then, Abi was concerned about how being with her mother might make her father feel. Regarding Abi’s last comment about wishing to be with her father “full time”, the father responded with “We will fight to make that happen.” It is unfortunate that in that moment the father did not remind Abi of how much her mother loved her, how glad he was that things were going better at her mom’s, and that being with them both was best.

[18] The communications set out above constitute a perfect example of the problematic behaviors displayed by the father that he needs to address before a resumption of parenting time or contact can be in Abi’s best interests.

[19] Since my February 1 endorsement, wherein I indicated that the father required “meaningful counseling” before his parenting time could be restored, the father has been attending counseling on a bi-weekly basis with Carolann Trainor, a registered psychotherapist. He has known Ms. Trainor professionally since 2018. Ms. Trainor provided a letter dated April 23, 2024, for the purposes of the return motion. In her letter, Ms. Trainor opines that the father continues to be a “responsible and caring parent to his children”. There is no indication in her letter that Ms. Trainor is aware of the findings set out in my earlier endorsement or that she has reviewed the most recent OCL report. It would seem her sole source of information is the Applicant father. In her letter, Ms. Trainor emphasizes (using all caps) that the Applicant father “does NOT criticize his ex-wife in front of his children”. This, of course, is a declaration of fact in respect of which Ms. Trainor has no direct knowledge. She is not present when the Applicant father engages with his children privately. Further, the emails that the Applicant father wrote to Abi in October 2021 that were filed as part of the mother’s motion materials defy this very suggestion. Ms. Trainor does not believe that further family counseling will be productive.

[20] This letter does not come anywhere close to satisfying me that the father has engaged in “meaningful counseling” about how his behavior contributes to the conflict. The letter paints the Applicant father as a victim and describes him as a supportive and insightful parent. With respect, this is contrary to my earlier findings and contrary to the evidence filed on this very motion. Have the two discussed why the father arranged for another adult to pick Abi up during the mother’s parenting time? Have the two discussed why he failed to advise the mother of that fact simply because a 12-year-old child asked him not to? Have the two discussed why the father would tell Abi that her mother “stole” her phone, that she should “get them back”, and that her mother’s behavior was “terrible”? Have the two discussed why the father suggested to Abi that she “run down the street” during the mother’s parenting time so he could pick her up? Have the two discussed why Abi feels that reuniting with her mother will sadden the father and hurt his feelings? Have the two discussed why the father completely deferred to the extreme wishes of a 12-year-old child when she inexplicably rejected her own mother? Is Ms. Trainor aware of any of these facts? There is nothing in her letter to suggest she is or that she is addressing these critical and obvious areas of concern with the father.

[21] Similarly, in the Applicant father’s affidavit, he once again expresses no insight into how his past behavior aggravated the conflict that undoubtedly poses a risk of harm to Abi. He focuses almost exclusively on the Respondent mother’s conduct. The father does not once allude to Abi’s feelings that reuniting with her mother might hurt and sadden him. Is he not interested in knowing what he may have done or said over the years that would create such a harmful emotion in a young child? It is tragic to think that a 14-year-old child wishes to save her relationship with her estranged mother but is holding back because she does not wish to hurt her father. In a 56-paragraph affidavit, the father does not mention this once.

[22] To be perfectly clear, the evidence filed on this motion only strengthens the findings made in my February 1 endorsement regarding the father’s role in this conflict. This Court was genuinely hoping to see some sincere reflection on the father’s part so it could satisfy itself that the past will not repeat itself, either with Abi or Sammy. Neither Ms. Trainor’s letter nor the father’s affidavit comes close to doing so.

Sammy

[23] The mother has expressed new concerns regarding Sammy. Both parties agree that Sammy has been engaging in high-risk behavior online, often accessing social media after hours and unsupervised. After one particularly problematic incident, there was a brief period where both parties appeared to work cohesively to address the issue. Sadly, that cooperation did not last. The father ultimately purchased Sammy her own phone that she could use during his parenting time so that the mother could not effectively monitor Sammy’s activity online.

[24] The mother’s concerns regarding Sammy’s unmonitored access to social media are twofold: 1) she alleges that liberal access to social media was something the father used in the past to gain Abi’s favor and she is concerned that the father is starting to employ the same strategy with Sammy; and 2) apart from the parenting conflict, there are obvious dangers associated with Sammy’s online activity should it go unchecked.

[25] The mother also argues that there are early warning signs that the father is beginning to manipulate Sammy. For example, the mother filed messages sent between Sammy and her stepsibling during the father’s parenting-time. The family had been out for supper and Sammy left for a relatively brief time to visit her mother’s home since it was nearby. While she was gone, the father and the rest of the family left the restaurant without telling Sammy or waiting for her to return. When Sammy found out and asked to be picked up because it was the father’s parenting time, she was advised that the father would not return for her and that she should stay at her mother’s. When Sammy said that she wanted to be with them and asked, “why do you not want to see me??”, they responded, “we all did you left. Have fun”. The father repeatedly refused to go back for Sammy, though he eventually relented.

[26] In his viva voce evidence, the father testified that the family needed to leave the restaurant because they had to get home and switch cars due to other commitments. The father offered no explanation for why Sammy could not have been told that at the outset without her having to beg to be picked up. The natural thing to do in those circumstances is to message Sammy in advance and let her know that they needed to leave but that they would be back for her as soon as they could. I agree with the mother that there is a concerning degree of manipulation in the messages, particularly when assessed in context. Given everything that has transpired between Abi and her mother, one would hope that the father would be particularly careful not to do or say anything that might inadvertently discourage Sammy from seeing her mother. These are the types of things that meaningful counselling could address were there a willingness to engage on that level.

[27] The mother also raises concerns about Sammy’s progress in school and reunification counseling. In her affidavit, the mother indicates that Sammy only attends those appointments during the weeks in which she is in her mother’s care as the father refuses to take her to either type of appointment. For this reason, the mother wishes to have sole decision-making responsibility in these areas to ensure that Sammy has full and consistent access to the assistance she requires. Further, the mother wishes an Order that the father be required to take Sammy to her scheduled activities while in his care should the Court not grant her primary care of Sammy. For his part, the father advised the Court during the motion that he is not opposed to taking Sammy to her appointments during his parenting time.

[28] Sammy wrote a letter to the Court that was filed as part of the motion materials. She still wishes to reside with both parents and “loves everyone”. In my view, despite appreciating the mother’s sensitivity towards some of the father’s behaviors, upsetting the week-about parenting schedule re Sammy would not be in her best interests. With that said, it would behoove the father to ensure that, at all times, he comports himself in a manner that promotes Sammy’s relationship with her mother. Abandoning Sammy at a restaurant after she briefly visited her mother during the father’s parenting time, and making her beg to be picked back up, arguably conveys to Sammy that there is a cost associated with wishing to see her mom. Acts such as those should not be repeated.

Family Reunification Counseling

[29] The father does not wish to engage in family reunification counseling at Renew Supervision Services because of what he describes as a breakdown of trust between himself and Ms. Loeffen. There was a miscommunication at some point in the summer of 2023 between Ms. Loeffen and the parties re whether Abi would benefit from further counseling. Other than that, there is nothing in the record before me explaining the father’s purported lack of trust in Ms. Loeffen. There is certainly nothing that would justify having both children start over with a new therapist despite both having already built a significant rapport with Ms. Loeffen over the last number of months.

[30] Back in the summer of 2023, Abi was not engaging with therapy and the outlook was rather bleak. Currently, Abi has been seeing Ms. Loeffen for close to four months for weekly individual sessions; she is genuinely engaged; Ms. Loeffen offers equine-assisted sessions which have been of great assistance; and Abi was agreeable to starting one-on-one reunification sessions with her mother. Continuing counseling with Ms. Loeffen as opposed to a new therapist is obviously in Abi’s best interests. This Court is hopeful that the father will meaningfully engage in family reunification counseling with Ms. Loeffen because doing so will be easier for his children.

Conclusion

[31] This matter is governed by section 16 of the Divorce Act. The decision regarding counseling and parenting time must reflect what is in Abi and Sammy’s best interests. This necessarily includes a consideration of both the short and long-term consequences of the relief sought. As I noted in my previous endorsement, no order can be made to punish the father for what may be his intentionally alienating behavior or alternatively his destructive and complacent attitude towards the conflict. However, with that said, I can and should consider his willingness and ability to foster a positive relationship between the children and their mother because that is relevant to his ability to parent (see s. 16(3)(c)).

[32] In my view, the Applicant father has not demonstrated sufficient insight into how his past decision-making aggravated the rift between Abi and her mother. Without gaining such an awareness, I have no confidence that the progress seen to date will continue should Abi return to the week-about parenting schedule. Given everything that has happened in the last two and a half years, it was alarming to this Court that the Applicant father expressed no regret about the manner in which he conducted himself in October 2021. The emails filed by the mother on this motion and the father’s viva voce evidence establish the following:

• In October 2021, as the conflict between Abi and her mother was erupting, the father arranged for another adult to pick up Abi from school during the mother’s parenting time. He did not tell the mother that he had done so because Abi “asked him not to”.
• After Abi told her father that her mother had taken her phone (an act that almost all responsible parents have had to do at one point or another when raising teenagers), the father told Abi that her mother had “stolen” her phone, that taking her phone was “terrible”, and that Abi should “get them back” because “they were [hers]”.
• The father implied that the mother was “forcing” Abi to go with her during her parenting time.
• He told Abi to “run down the street” if she was still scared and that he would pick her up, and that he was “just trying to protect [her]”. The father sent these messages despite having no basis to believe that Abi was anything but safe in her mother’s home. Abi may have been unhappy at that time and upset with her mother, but she was most certainly safe, and the Applicant father knew it.

[33] When Abi told her father that she was willing to stay at her mother’s place, but he should not worry because she still wanted to be with him “full time”, the father responded, “we will fight to make that happen” and that she should “get [her] phone back!!”. He also reminded Abi to “log off [her] email”, this undoubtedly to ensure that no one viewed the incendiary nature of his communications.

[34] The messages sent by the father during such a pivotal moment in the mother’s relationship with Abi were nothing short of shameful and outrageous. I do not accept that they were sent out of genuine concern. They were sent to manipulate a 12-year-old child and take advantage of the conflict that had grown between her and her mother. Even after seeing the impact this ultimately had on Abi, including the fact that she lost almost two and a half years with her mother during her early teen years, the father fails to appreciate his very real contribution to this conflict.

[35] Counsel for the father emphasized in submissions that the emails are just one exchange between the father and Abi. That may be so. But I have no reason to think that other private communications between the two were any different, and they go a long way in explaining why a 12-year-old child would inexplicably reject her mother so absolutely and for such an extended period.

[36] In conclusion, I find it premature to resume any amount of parenting time or contact between Abi and her father because there is nothing upon which this Court can rely to satisfy itself that the same issues will not re-emerge. The father must learn how his behavior impacts the conflict to ensure he does not interfere with the positive progress that has been made to date.

[37] One cannot help but wonder what may have happened in October 2021 if the father had reminded Abi that she was safe with her mother, that her mother loved her very, very much, that she was required to remain at her mother’s place during the mother’s parenting time, and that her mother was entitled to discipline Abi by taking her phone if that was what she deemed best in the moment. I do not emphasize this point because the above was what the mother needed from the father at that time. I emphasize the point because it is what Abi truly needed from her father. He failed to meet the moment. He was utterly unable to put Abi’s interests above his own disdain for her mother. In so doing, he has caused Abi harm, the impacts of which will only be fully known long term. I find it entirely appropriate for the father to pay for half of the costs associated with remedying that harm.

Temporary Order

[38] For the above reasons, I make the following temporary Order pursuant to the Divorce Act:

1. The Respondent mother, Katherine Laird, shall continue to have sole decision-making responsibility for Abi. Abi shall reside exclusively with the mother for the time being.
2. The Applicant father, Brendon McEniry, shall have no parenting time with Abi until further order of the court.
3. The father shall not communicate directly or indirectly with Abi in any way, including in writing, by telephone, through social media or by any other form of communication, until further order of the court, unless specifically consented to by the mother, or through Lisa Loeffen at Renew Supervision Supervises should she be of the view that contact between Abi and her father should resume in some fashion as part of the reunification process. Contact between the father and Abi as part of joint counselling is also permitted at the discretion of Ms. Loeffen, should she deem it appropriate as part of the reunification process.
4. The father shall not attend Abi’s school, the mother’s home, or any place he knows Abi to be unless consented to by the mother.
5. The mother shall provide the father weekly updates on Abi’s progress and development via Our Family Wizard.
6. The mother is permitted to retain the services of professionals to provide reunification counseling to Abi and Sammy without the father’s consent. The mother also has the unfettered discretion to engage the children in any type of therapy, counselling, or tutoring that, in her view, will provide them with the emotional, psychological, and educational support they need. The father’s consent to any form of therapeutic intervention, counseling, or tutoring is hereby dispensed with.
7. The mother shall promptly inform the father of any appointments made pursuant to the above paragraph.
8. The father shall have equal access to information from the children’s health care providers, counsellors, and tutors.
9. Sammy shall continue to reside with both parties on the week-about schedule set out in the final Order.
10. During his parenting-time, the father shall ensure that Sammy is taken to all counseling, therapy, or tutoring appointments as arranged by the mother.
11. Sammy shall have access to only one smart phone or tablet. Neither party shall purchase Sammy a separate device that can be used during their parenting time, and neither party shall delete any messages sent or received on Sammy’s devices.
12. The father shall meaningfully attend family reunification counselling at Renew Supervision Services with Ms. Lisa Loeffen, at the frequency recommended by Ms. Loeffen.
13. The father shall pay for half the costs associated with reunification counseling at Renew Supervision Services for Abi and Sammy.
14. I remain seized of any motions in this matter relating to parenting time.
15. Leave is granted to the father to bring one further motion before trial should he wish to resume some amount of parenting time or contact with Abi before trial. Leave to do so is contingent on the father participating in family reunification counseling at Renew Supervision Services as directed by this Court.
16. A trial on all unresolved issues between the parties shall be added to the November trial list. The parties shall take immediate steps to schedule a Trial Management Conference through trial coordination which shall take place not less than 30 days before trial.

[39] Counsel for the Applicant raised concerns about the mother restricting contact with the father’s partner, Lisa Damien, and her children, with whom Abi is quite close. I note that it was not the mother who restricted contact between Abi and Ms. Damien’s children. It was Ms. Damien who did that after she learned that the mother filed as part of her motion materials some brief text-based exchanges between Sammy and one of Ms. Damien’s children. Ms. Damien is naturally anxious about her children’s privacy and them becoming involved in these protracted proceedings. The mother did restrict contact with Ms. Damien because she was concerned that Ms. Damien acted as a conduit for the father.

[40] At the motion, I raised concerns about Abi being cut off from other family members with whom she has lived for the last two and a half years. The mother advised that she is not opposed to Ms. Damien having “reasonable” contact with Abi, provided it does not become excessive. While Abi is in her mother’s care, these are her decisions to make. The same way that Ms. Damien is entitled to make decisions regarding what contact is in her children’s best interests. I am hopeful that the mother will make good on her word to permit Abi to have reasonable contact with Ms. Damien moving forward as that is clearly in Abi’s best interests. I am also hopeful and confident that Ms. Damien, who has attended all the motion dates in person, if permitted by the mother, will engage with Abi on strictly positive terms and in a manner consistent with Abi reuniting with her mother, a goal I find critical to her long-term well-being.

[41] Given this was a court-ordered return motion, each party shall bear their own costs.

Justice K. McVey Date: May 29, 2024