E.B. v. G.B.-M., 2024 ONSC 3475

NEWMARKET COURT FILE NO.: FC-22-1478-00 DATE: 20240628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

E.B. Applicant – and – G.B.-M. Respondent

Counsel: B. Ludmer, Counsel for the Applicant Respondent – Self-represented

HEARD: May 22, 23, 27, 28, 29, 30, and 31, 2024 and June 4, 5, 10, 12 and 13, 2024

Reasons for Decision

Macpherson J.:

Relief Requested

[1] The Applicant’s Amended Application requests the relief that follows: (a) decision-making authority for the children; (b) parenting time with the children; (c) access to information regarding the children; (d) non-removal of the children from the Greater Toronto Area; (e) spousal support; (f) child support; (g) a divorce; (h) equalization; (i) a restraining Order; and (j) costs.

[2] The Respondent’s Answer requests the relief that follows: (a) decision-making authority for the children; (b) parenting time with the children; (c) spousal support; (d) child support; (e) a divorce; (f) equalization; and (g) costs.

3It is noteworthy that, in addition to the relief claimed above, the Respondent has also served notice of his intent to relocate back to Switzerland.

4Pursuant to the Trial Scheduling Endorsement Form (hereinafter TSEF), this matter was scheduled to proceed through five-six days of trial. The trial took 12 days.

Preliminary Trial Matters

Adding Witnesses

5At the beginning of trial, the Applicant requested permission to add three witnesses to her witness list. The three witnesses requested were: a) Dr. Richard Chlup who completed an expert report on the parties’ finances; b) Sandra Garibotti, family therapist and c) Sonya Stefanutti, an Office of the Child’s Lawyer clinician.

6The Respondent objected to the additions on the basis that the TSEF was completed already and there should be no departures from it.

7The TSEF was completed in April 2023. A year has passed. The Court issued an oral Ruling advising that the Court would accept the three witnesses proposed and consider their evidence as they all had involvement with this family after the TSEF was completed and all have information relevant to the issues before the court. In response, the Respondent requested an addition to his witness list, William Chen, CAS worker. Mr. Chen was permitted as an additional witness for the Respondent.

Exhibits in a Language Other than French or English

8It is noteworthy that both parties attended trial with copious quantities of proposed exhibits some of which were not in French, English or in another language accompanied by a certified translation. The parties were reminded that Section 125 (1) and (2) of the Courts of Justice Act states as follows:

Official languages of the courts

125 (1) The official languages of the courts of Ontario are English and French.

Proceedings in English unless otherwise provided

(2) Except as otherwise provided with respect to the use of the French language, (a) hearings in courts shall be conducted in the English language and evidence adduced in a language other than English shall be interpreted into the English language; and (b) documents filed in courts shall be in the English language or shall be accompanied by a translation of the document into the English language certified by affidavit of the translator. R.S.O. 1990, c. C.43, s. 125 .

9Despite the very clear wording of section 125 of the Courts of Justice Act and this Court addressing the issue at the outset of trial, the issue was replayed by the Respondent over and over again.

Request for Additional Trial Time

10Pursuant to the TSEF, this matter was scheduled for five-six days of trial. This Court permitted the addition of witnesses which increased the trial time by an additional day.

11Both the Applicant and the Respondent, pursuant to the TSEF, were provided two hours of oral examination in-chief in addition to the affidavit that each filed. Despite that, both the Applicant and the Respondent were provided additional time to present their case.

12The Respondent indicated that his testimony in-chief, comprising of his affidavit and six hours of examination in-chief was insufficient. The Court declined to provide additional time to the Respondent. Throughout his examination in-chief, the Respondent was repeatedly advised that the information he was providing was irrelevant or unhelpful. For example, the Respondent provided excessive details about his wedding to the Applicant in 2002. When told that the evidence was unnecessary, the Respondent refused to depart from his script. The Court attempted, on more than one occasion, to direct the Respondent to consider the issues outstanding and tailor his evidence to the issues. The Respondent refused to do so. Many times the Respondent was advised that the information he was providing was irrelevant and unnecessary. The Court permitted the Respondent to testify as he wished but provided him with a time limit to do so. Trial time must be proportionate to the issues to be resolved.

13Pursuant to Rule 2 of the Family Law Rules, the primary objective of the Rules is to enable the court to deal with cases justly.

[14] Dealing with cases justly includes: a) ensuring the procedure is fair to all parties; b) saving expense and time; c) dealing with the case in ways that are appropriate to its importance and complexity; and d) giving appropriate resources to the case while taking account of the need to give resources to other cases.

15Pursuant to Family Law Rule 2(4), while the court is required to apply the rules to promote the primary objective, the parties and their lawyers are also required to help the court promote the primary objective.

16The Court does not have the luxury of listening to hours of irrelevant and unnecessary testimony waiting patiently for brief nuggets of evidence that might be relevant to the issues outstanding. A self-represented litigant, or any litigant for that matter, that elects to ignore the court’s direction when presenting their case are, like here, still confined to the quantity of court resources allotted.

17The Respondent refused to submit any documentation in support of his case because he stated that he needed several additional hours to complete his testimony. The Court advised the Respondent that the request had already been ruled on and denied. Despite this, the Respondent made the same request over and over again. When he was given a final opportunity to submit his documents, he did not. When the time allotted for his examination in-chief was up, the cross-examination commenced. The Respondent refused to answer any questions on the basis that his examination in-chief was incomplete. His testimony was not tested.

18The Respondent’s behaviour throughout the trial was aggressive and petulant. His behaviour at the trial was consistent with other court appearances. In her Endorsement dated March 14, 2023, Justice Himel remarked as follows:

“During past attendances before me duty counsel attempted to help the father, but he declined their assistance. He walked out of court mid-conference during at least one attendance. The Father does not recognize the mother’s counsel, Mr. Ludmer, as the counsel of record and at various times he does not refer to me by my title, being Justice Himel. The father must change this behaviour.”

19Justice Daurio, in her January 10, 2023 Ruling, found that the Respondent was in breach of Justice Himel’s Orders dated September 14, 2022 and October 27, 2022.

20Justice Meyers, in a decision of the Divisional Court dated May 16, 2024 made the following observation:

“The appellant is now showing signs of being or becoming a vexatious litigant. He is appealing everything in sight. He has previously been found to have violated orders by Daurio J. He is plainly refusing to accept the direction of both judges below to get on with the trial. Allowing this motion for leave to appeal to go forward gives credence to the appellant’s apparent desperation to avoid the trial and his willingness to misuse of the court’s resources.”

Background Facts

21The parties were married on September 22, 2002.

22There are three children of the marriage namely, L. born in 2005; M. born in 2008; and N. born in 2010. L. will be 19 in June 2024. L. lives in Switzerland with his paternal aunt and has done so since February 2022.

23The parties resided in Switzerland for many years prior to their arrival in Canada as a family in 2017. All three children were born in Switzerland. All three are Swiss nationals. All three are eligible to request Japanese citizenship.

24While in Switzerland, the Applicant was a stay-at-home parent and she was the children’s primary caregiver. By contrast, the Respondent was the breadwinner for the family working in a business or businesses he owned and operated.

25The Respondent is an architect by training and, at the time the family moved to Canada, he had three businesses in Switzerland. At least one of the Swiss businesses operated by the Respondent was under a tax fraud investigation when the family moved to Canada. As a result of the investigation, and to avoid the tax debt owed in Switzerland, the Applicant states that the Respondent proposed the family move to Canada.

26The parties and the youngest two children currently reside in Canada pursuant to a temporary resident Visa.

27The parties separated for the first time in 2016. At that time the Applicant alleged that the Respondent threatened her life right after the Swiss tax agency commenced their investigation. There were criminal charges and child protection involvement while in Switzerland in 2016. During the separation, the Applicant and the children stayed at a shelter for two and a half months during which the Respondent had no contact with the children. The parties reconciled in January 2017. The Applicant states that it was based on the Respondent’s promise to her and her father that the Respondent would be nicer to her.

28As stated, the parties and the children arrived in Canada in the spring of 2017. In 2020 the families’ permit to stay in Canada was extended for three years. It now expires on August 7, 2024 unless extended. The Applicant started a massage therapy course in 2018 and graduated in June 2021. The Applicant has worked since 2022 as a massage therapist.

29The Respondent has not worked since the parties’ arrival in Canada. He states that he was diagnosed with sclerosis in 2018. The Respondent testified that various medications were tried but proper medication costs $30,000 per year. The Respondent testified that he attends physical therapy as well as a pain specialist.

30The Respondent has a conflictual relationship with his family of origin. He has no relationship with his mother, father or brother. The Respondent does have a relationship with his sister.

31The Applicant states that there is an outstanding permanent residency Application for the family under her name. The Applicant testified that the Respondent’s criminal charges will impact the Application and the Respondent will be removed from the Application for permanent residency once the parties are divorced. The Applicant states that the Respondent is likely to be deported.

32Following their separation, the Applicant moved out of the home while the Respondent and children remained.

33The Respondent testified that he eventually left the home they shared in Unionville as he was four months in rental arrears. The Respondent moved with the children to Toronto and did not initially disclose his new address to the Applicant. The Respondent removed most of the parties’ belongings.

34The Respondent testified that he was unable to locate a shelter for himself and the children and is now relying on the kindness of a German federal judge who is permitting the family to use his two-bedroom apartment in Toronto.

35In or about February 2022 L. left Canada to live with his paternal aunt, Pia Requena Pelucarte, in Switzerland. L. will commence University in Switzerland in September 2024.

36The parties agree that the date of separation is August 14, 2022.

Credibility

37The Applicant testified in court in a manner that was straight forward and believable. Her demeanor, at all times, was calm, deferential and appropriate. She attended court organized and prepared. At all times she answered questions carefully in a balanced and compelling manner. I found her evidence credible.

38In terms of her approach to the Respondent’s witnesses and the evidence from the Respondent, she objected to much of the evidence the Respondent offered. For example, in response to the 10-page affidavit of the Respondent’s witness, Ms. Pelucarte, the Applicant filed eight pages of objections. In response to the four and one half page affidavit of the Respondent’s witness, Roland Mattern, the Applicant filed two pages of objections. In response to the four and one half page affidavit of the Respondent’s witness, Dean Bendall, the Applicant filed two pages of objections.

39Many of the Applicant’s objections were unnecessarily aggressive. The volume of objections made by the Applicant, including objections to insignificant details, was unnecessary and distracting. The Court has apportioned the weight, if any, given to the evidence.

40The Respondent, by contrast, from the moment the trial commenced, was argumentative, difficult and pedantic. He threatened an appeal following a routine evidentiary ruling and he threatened to appeal decisions of Legal Aid Ontario. The Respondent was quick to remind the court that he had already commenced six appeals. The Respondent ran out of court, in the middle of proceedings, on two occasions. The Respondent was cautioned not to do so again.

41The Respondent indicated that his English was insufficient to conduct a trial such that a German interpreter was required for every statement. He did demonstrate his proficiency in English when, on numerous occasions, he corrected the interpreter’s translation. The Respondent was reprimanded for yelling and physically poking the court interpreter. The Respondent was cautioned numerous times to wait for the translation before answering a question.

42The Respondent’s anger was evident throughout the trial. There were times where the Respondent was so angry from testimony that he would shake uncontrollably and speak through gritted teeth. The Respondent was told not to approach a witness and told to keep his distance from the Applicant. The Respondent was not organized and prepared for the trial. He did not bring the numerous exhibit books served on him to the court. The Respondent did not have copies of his proposed exhibits.

43It was clear from the outset that the Respondent’s objective was to have the trial adjourned. Indeed, the Respondent requested the trial be adjourned. When the adjournment was unsuccessful, the Respondent objected continuously, without any legal foundation. For example, the Respondent objected when the Applicant testified on a point with which he disagreed.

44The Respondent was critical of Applicant’s counsel, Mr. Ludmer. The Respondent complained that the court process was unfair. The Respondent complained that Legal Aid was unfair. The Respondent complained about the actions of the Office of the Child’s Lawyer. The Respondent objected to the Applicant’s father testifying. The Respondent objected to expert witnesses’ qualifications and he objected to expert reports being admitted.

45During the trial the Respondent made false statements to witnesses and to the Court. For example, the Respondent objected to expert, Mr. Chlup, testifying because he did not file an affidavit. The Respondent stated that Justice Himel ordered the expert to file an affidavit in the TSEF. When the Respondent was told that the TSEF did not say that Mr. Chlup was required to file an affidavit, he insisted it did. When asked to point out where, he said he did not have a copy of the TSEF with him. The TSEF did not state that the expert was to file an affidavit.

46Finally, because the Respondent did not receive the quantity of trial time he demanded for his examination in-chief, he refused to answer any questions on cross-examination.

47I did not find the Respondent credible. He accepted no responsibility for any of his actions, refused cross-examination avoiding accountability, and remained focused on objecting to evidence, witnesses and procedure in an attempt to obfuscate the main issues.

Parenting Evidence

Ms. E.B.

48The Applicant testified that the parties separated on August 14, 2022 when she was sexually assaulted by the Respondent. The Respondent was charged with assault, sexual assault and sending harassing communications. Despite bail conditions that precluded contact, the Applicant states that the Respondent breached those conditions on three occasions.

49The Applicant testified that the Respondent has been abusive towards her by degrading her, belittling her and treating her like a servant. She states that she suffered physical and mental abuse at the hands of the Respondent. The Applicant states that the Respondent has also been abusive to the children.

50The Applicant testified that since August 2022 the Respondent marginalized her role with the children and alienated them. The Applicant testified that the Respondent has included the children in the litigation flaunting court directives to cease the practice. He was ordered to give the Applicant the immigration file and he did not. Therapy was ordered but, as a result of the Respondent’s actions, did not occur. The Respondent did not complete parenting courses he was ordered to take.

51In terms of contact with the children following the separation, the Applicant states there were over 50 failed transitions from September 2022 through March 14, 2023. Since March 15, 2023 M. and N. have been in the Applicant’s care on alternate weekends. However, the children do not interact with her at all. They isolate in their rooms and refuse to speak to her, and refuse to eat food prepared for them by her. The children state they attend visits only to avoid the Respondent going to jail.

52The York CAS has been involved with the family since August 2022. The Applicant states that the CAS determined that the Respondent uses the children to control her. In addition, the CAS noted concerns regarding alienation, M.’s self-harm, and the difficulty the CAS had with the Respondent’s lack of cooperation. The Respondent accused worker, Richard Kendall, of assaulting him.

53The Applicant states that she attempted to get therapy going many times, commencing in November 2022 when she attempted to locate a reunification therapist. Ms. Polak was the first reunification therapist and she refused to provide therapy after receiving the Respondent’s proposed changes to the standard consent. The Respondent has stated the children do not want to participate in therapy and he will not make them.

54The Applicant states that the children mirror the Respondent’s demands when with her. She is told by the children to fulfil her duties as a wife and mother. The Applicant states that the children’s views and preferences are known but they are not their own. They are the Respondent’s views.

55When asked about their communication in the future, she said there were several options but that they should have therapy first. The Applicant testified that she still supports the Respondent and the children having a good relationship and she testified that, as parents, it was important to keep a good and healthy relationship with the children.

Mr. G.B.-M.

56The Respondent commenced his testimony by stating he was only concerned about the following topics: a) the permit to stay in Canada which expires on August 7, 2024; b) the children’s desire to go their own way and that they be supported by the parents; c) dividing the possessions and the finances and defining the future; and d) written confirmation of divorce.

57As stated, the Respondent refused to answer any questions during cross-examination. Accordingly, his evidence has not been tested.

58The Respondent testified that he met the Applicant in 2001 in France. Later, in 2002, the parties met again in Switzerland and decided to get married.

59In April and May 2002 the parties spent six weeks in Japan preparing for their wedding.

60In 2005 L. was born. As a result of a high risk for premature delivery, the Applicant was in hospital for one-two months before L.’s birth.

61In 2008 M. was born. M. was two months early and she remained in hospital for several weeks.

62In 2010 the Applicant was in hospital for several weeks before N.’s birth as there was a high risk of a premature birth.

63The Respondent testified that in 2012 the Applicant had a psychiatric issue and the Respondent did not know what was happening.

64The Respondent testified that he was unsuccessful in obtaining clarity from the Applicant’s father about the Applicant’s 2012 hospitalization.

65On March 19, 2017 the family arrived in Canada. They made an Application for a temporary Visa. The Respondent testified that the Applicant immediately started looking for an English education at University of Toronto where she attended for six months. A student Visa was not necessary as the studies were for only six months.

66On April 4, 2017 the children started school in Canada.

67The parties rented a house and it was furnished from two large containers that arrived from Switzerland. The Respondent testified that he assisted the children to adapt to school, organized everything regarding sports – figure skating at the Cricket Club, hockey etc., and he completed the residency permit Application.

68The Respondent testified that after he arrived in Canada he completed a few projects for his companies in Switzerland. Shortly after their arrival in Canada, he still had two employees and his sister assisting with his companies.

69The Respondent testified that he paid his taxes in Switzerland.

70The Respondent testified that the Application submitted for the visitor permits was completed on the wrong form. The Respondent completed the ‘Outside Canada’ Application.

71In April or May of 2017 the family joined the Toronto Cricket Club with a temporary membership. At the time, the Respondent testified, he understood the Applicant to state that the cost of the Cricket Club was $6,000 for the family for the year. The Respondent testified that he did not look at the agreement closely at that time and later found out the Cricket Club cost over $36,000 per year for the family.

72In April/June 2022 the Applicant went to Japan with M. and N. The Respondent testified that he did not know Jason Brown would also be present with them in Japan. The Respondent testified that the Applicant had an affair with Jason Brown. The Applicant denies an affair testifying that Jason Brown was a professional figure skater who identifies as homosexual.

73The Respondent testified that he believed that a solution was necessary for the family. He testified that he would never fight with his wife again.

74The Respondent testified that he would follow all court Orders.

75The Respondent testified that the focus must be on the best interest of the children and that it be fair and equal.

76The Respondent testified that the children are justified in their anger with the Applicant as she had an affair, left the home, and has not provided any child or spousal support. The Respondent testified that the children do not accept the parties’ separation. The Respondent admits that he shared court documents with the children. He sees no issue with this.

77The Respondent testified that he is penniless, is terminally ill, deals with pain every day and has severe physical limitations. The Respondent testified that the children have resided with him since separation and the Applicant has made no support payments.

78The Respondent testified that the parties’ visitor status expires on August 7, 2024. The Respondent testified that the permanent residency Application would likely be approved or rejected in the next few months.

79The Respondent testified that both M. and N. want to reside with him, they do not want contact with the Applicant, and they would like to return to Switzerland where their brother, L., resides. At the same time the Respondent testified that M. prefers to remain in Canada for the next two years so she can finish high school. The Respondent requests permission to relocate with M. and N. to Switzerland.

80The Respondent testified that M. wants to study medicine and engineering in Switzerland in order to be accepted into the Swiss-European space program. N. is interested in art and design.

81In terms of decision-making, the Respondent proposes N. to remain in online schooling to finish elementary school and then to attend in-person schooling in high school.

82In terms of extra-curricular activities, the Respondent stated that M. wants to continue playing hockey while N. wants to continue skating in a small public club and not at the Cricket Club, which the Respondent cannot afford.

83In terms of parenting time, the Respondent proposes the children reside primarily with him and that the Applicant have regular parenting time. The Respondent opposes the children residing with the Applicant and he opposes 50:50 parenting time with the Applicant on the basis that it is against the children’s views and preferences.

Maternal Grandfather

84Mr. M., the Applicant’s father, testified that the Respondent was bright and friendly when he was in a good mood but once in a bad mood, he became taciturn and the atmosphere around him would become dark and heavy. He described the Respondent ignoring the Applicant, suddenly losing his temper, or suddenly getting into a bad mood. He stated that he saw the Respondent behaving in an irrational and at times aggressive manner.

85Mr. M. described an incident in Japan where the Respondent got angry and was yelling at the Applicant. Mr. M. told him to stop yelling. The Respondent stopped the car in the middle of the road, dumped the Applicant’s luggage on the road, and ordered the Applicant to leave. The children, L. and M., observed the interaction and were crying in the backseat.

86The Respondent told the maternal grandfather that he would be kinder to the Applicant following their reconciliation in 2017.

87The last time the maternal grandfather saw L. in person was about October 2016.

88The maternal grandfather testified that he made several attempts to contact the children since the separation in 2022. All emails and text messages were ignored. When the children were at the Applicant’s home and the speaker turned on the children would still not respond to the maternal grandparents when they contacted them.

89The maternal grandparents have provided the parties with financial assistance over the years including the purchase of a car for the parties in March 2010 and paying extra curricular activities for their grandchildren.

Sonia Stefanutti, OCL clinician

90By Order of Justice Bennett dated March 20, 2024, the Office of the Child’s Lawyer was requested to complete a Voice of Child report for the three children. As is standard, and as was stated in the Order, both parties were to file their intake forms within one day.

91Sonia Stefanutti was assigned as clinician by the Office of the Child’s Lawyer on or about April 11, 2024. Ms. Stefanutti described her role to complete a Voice of the Child Report containing the children’s thoughts, views and feelings - through interviews – one interview with mom and one interview with dad. For this type of assignment, she testified that she would conduct two separate interviews with the children, one in each home, and complete the report. The mandate did not include an independent assessment.

92Ms. Stefanutti testified that she did not receive the Respondent’s intake forms so did not have his contact details. She testified that she did not receive his intake package until April 17, 2024 from the OCL office.

93Despite not having received his intake form, Ms. Stefanutti did have the Respondent’s telephone number. Initially Ms. Stefanutti attempted to reach the Respondent, by calling him, but there was no answer between April 9 and April 15, 2024.

94When Ms. Stefanutti contacted the Applicant she left voice messages explaining her role and explaining that she would need to interview the children when they were with her. The Applicant shared two things with her: a) it would be very difficult to have a conversation with her daughters at her home because the children do not speak to the Applicant; and b) the Applicant suggested that she contact the Respondent to book the appointments with the children.

95Since Ms. Stefanutti did not hear from the Respondent and he did not answer his phone, Ms. Stefanutti decided to text the Respondent a message. The Respondent’s text response dated April 15, 2024 is filed. The Respondent stated that he received the messages but he wanted an official response from the Office of the Child’s Lawyer and asked Ms. Stefanutti to contact him officially via business email or letter.

96On April 26, 2024 in the evening, Ms. Stefanutti attended the Applicant’s condo. She could not get inside the condo building as she could not get through the buzzer. Ms. Stefanutti left a message for the Applicant who called her right back. The Applicant was with one of her daughters at a pet store. Arrangements were made for Ms. Stefanutti to come back Sunday morning April 28, 2024.

97On April 28, 2024 Ms. Stefanutti arrived at the Applicant’s condo at 11:00 a.m. The Applicant greeted her. One of their daughters, who was in the kitchen, with her back to Ms. Stefanutti, did not acknowledge her and quickly went into the bedroom and closed the door. Ms. Stefanutti asked the Applicant if she could go close to the door. After receiving permission Ms. Stefanutti went to the door, knocked, explained who she was through the door, and asked M. and N. to come out and speak. There was no response. When Ms. Stefanutti told the Applicant that she had to leave, as the children would not speak to her, M. came out and confronted her. M. asked questions about why Ms. Stefanutti was there and why M. was not informed of her coming. M. was very angry. Her tone was high. Ms. Stefanutti testified that she firmed her tone to calm M. down. Ms. Stefanutti explained who she was, her role, and that she was there for their benefit to hear their views and thoughts. Ms. Stefanutti gave M. a copy of the court Order. M. took a picture with her phone. Ms. Stefanutti showed her identification to M.

98Eventually M. calmed and was able to sit at the table with Ms. Stefanutti. Ms. Stefanutti felt she needed to build trust with M. and testified that she spent a lot of time getting to know her. After two and a half hours with M., Ms. Stefanutti made the decision to reconvene another day for the interview. M. provided an email address where Ms. Stefanutti could text her. Ms. Stefanutti suggested the following Tuesday or Wednesday after school to complete another meeting by telephone, Zoom or in person. M. agreed to reconnect. Ms. Stefanutti said “if I don’t hear from you by end of week, I will reach back out to you.” Before leaving Ms. Stefanutti asked M. to bring N. out so the clinician could meet her. N. exited the bedroom and Ms. Stefanutti explained who she was.

99By May 6, 2024, Ms. Stefanutti had not heard back from M. Ms. Stefanutti had not heard from the Respondent. Ms. Stefanutti sent a text to M. and asked if they could meet. M. did not reply. Ms. Stefanutti testified that, as of the trial, she still has not heard back from M.

100Ms. Stefanutti testified that she received an email from the Respondent on May 6, 2024 including the following commentary:

“The point specified by the court regarding CAS files and Ms. objection must also be mentioned in the order, in addition to the fact that the person assigned must be provided with all documents, intake forms, etc., so that this order is complete and therefore legally correct can continue. Without this clarification, I ask you not to contact us again. We will wait until OCL gets in touch, otherwise I will be forced to take legal action, which unfortunately means I will have to involve the police, OCWSSW and / or CRPO along with the OCL.”

101On May 7, 2024 Ms. Stefanutti made the decision to cease her attempts to complete the Voice of Child report. Ms. Stefanutti explained that she only had 30 days to complete the report. As a result of the lack of engagement from the Respondent and the children the decision was made to discontinue.

102The following day, on May 8, 2024, Ms. Stefanutti received an email from the Respondent giving her permission to proceed with the Voice of Child report. Ms. Stefanutti perceived that there was interference by the Respondent, who held a lot of mistrust and who required clarification of the process.

Ms. DeVeto, Expert

103Ms. DeVeto was qualified as an expert in matters of child – parent contact problems.

104Ms. DeVeto did not meet with the children, did not meet with these parents, and did not complete a case specific inquiry. Rather, Ms. DeVeto, in her report, classified cases involving parent-child contact problems and gave an overview of the varying levels of severity from mild to severe.

105In terms of solutions, Ms. DeVeto testified that regular therapy for severe cases would not be effective and may cause harm. She testified that the literature and scientific practice states that in cases of severe alignment with one parent over another there must be separation between the children and the preferred parent generally for a period of 90 – 120 days. Ms. DeVeto testified that a restraining Order is often placed upon the preferred parent by the court. During the 90 – 120 days, there is a reversal in custody and the children are placed in the care of the rejected parent so that there can be healing without the toxic influence of the preferred parent.

106At the end of the 90 – 120 days, Ms. DeVeto testified that the hope was that with the parties being treated, contact could resume between the children and the preferred parent. The goal is for the children to have a healthy and normative relationship with both parents.

107In terms of children, Ms. DeVeto testified that there is no maximum age that would preclude the approach. If a child loses a parent as a result of separation, the scientific literature and research states that children who are alienated experience guilt, anxiety, low self-worth, and difficulties in relationships. Ms. DeVeto testified that the psychological effect of losing a parent is a profound loss.

108Ms. DeVeto testified that there was scientific and experiential data to suggest the proposed remedy works. Ms. DeVeto testified that reunification can occur with a local family therapist and court oversight. In terms of oversight, Ms. DeVeto testified that it was important for the judge to meet with the children, to provide an explanation for the reverse custody Order, to explain the expectations prior to resuming contact with their preferred parent, and for the court to be the gatekeeper and not the rejected parent.

109Best clinical practices Ms. DeVeto testified, is for the preferred parent to get therapy to gain insight into the family dynamic and to take accountability for the children’s rejection of the targeted parent. Best clinical practices include children taking accountability, working with a therapist with their rejected parent and to learn how alienation occurs, communication, critical thinking, and conflict resolution. Ms. DeVeto testified that the incidences of success were very high and there was no evidence of harm to children who participate in this approach.

110Ms. DeVeto testified that, generally, there is a trip between the rejected parent and the children. The purpose of the trip is to take children out of their context and to provide an opportunity to create new memories with the rejected parent and potentially other members of the extended family.

111Ms. DeVeto testified that to the extent a court can put restrictions on friends, family members, and social media the better.

112Ms. DeVeto testified that one option was to leave the children with the preferred parent and increase time with the rejected parent. Ms. DeVeto testified that in severe case of alienation this would not be effective. A third option is to place the children with someone other than either parent.

113The goal of the intervention is meant to be short term with the goal that the children can have healthy and normative relationships with both parents.

114Ms. DeVeto testified that there are long term detrimental impacts to children for losing a parent in childhood.

115Ms. DeVeto testified that with teenagers it does not make a difference. The therapist would tailor the therapy for teenagers. Ms. DeVeto testified that when custody was reversed children will begin to feel safe and be able to connect with their rejected parent. Ms. DeVeto testified that once the child is separated from the toxic influence of their preferred parent, generally their behaviour improves, their attitudes improve, and they feel safe to begin to reconnect.

Ms. Lisa Butt, CAS Child Protection Worker

116Ms. Butt testified that she was the intake worker. She testified that the CAS was contacted by an officer from York Regional Police on August 18, 2022 after the Applicant alleged that she was assaulted by the Respondent. The police made the referral because of their duty to report. The file was sent to ongoing in or about November 28, 2022.

117Ms. Butt met with the Respondent for the first time on September 14, 2022 just after a court appearance. The first visit between Ms. Butt, the Respondent and the children occurred shortly after. Ms. Butt spoke to both children. Ms. Butt met with M. and N. They spoke positively about both parents regarding their relationship. However, they had a lot of anger towards their mother. They did not understand her actions. They said they had a good relationship before the separation.

118The children stated to Ms. Butt that they spent a lot of time with their father. They talked about sports. They did not want their parents to separate, and they wanted the Applicant to return home. They were aware of the sexual assault allegation. They said the Applicant told them about it. The children were aware of the litigation as they read paperwork from court materials.

119Ms. Butt concluded that both children were emotionally impacted by the separation, like a lot of kids, however, they also had a lot of awareness of adult matters. Despite that, Ms. Butt had no imminent concern for the children’s safety.

120Ms. Butt recommended that both parents focus on the needs of the children, not speaking negatively about the parent opposite, that they resolve the custody matters in court, and that they consider counselling for the children so they could process the separation. Ms. Butt testified that she also recommended continued parenting time despite the children having a difficult time.

121Ms. Butt said the case was referred to ongoing because it was the court’s recommendation. Ms. Butt said she would have closed the file if the court had not recommended that it be sent to ongoing.

122Ms. Butt reported some progress. She states the Applicant continued to see the children. The situation did not get worse. Ms. Butt testified that she was never afraid of the Respondent who cooperated with her, met with her, and permitted her to meet with the children.

123Ms. Butt did not make a determination that alienation was present as there was insufficient information. She did say that when children have no contact with a parent it could be considered emotional harm.

124Ms. Butt testified that she had no specific training on alienation.

125Ms. Butt testified that when she had carriage of the file, the CAS never considered removing the children from the Respondent’s care.

126Ms. Butt spoke to the Respondent about not showing further court documents to the children and to her knowledge he stopped.

Richard Kendal, CAS Child Protection Worker

127Mr. Kendall is a CAS child protection worker who was assigned to work with the family on November 28, 2022. He ceased working with the family on February 22, 2023.

128Mr. Kendall met with the children, M. and N., on November 28, 2022. In that meeting M. stated that the Applicant was crazy and manipulative.

129Mr. Kendall testified that he attended a home visit with the Respondent and the children on February 8, 2023 at the Respondent’s home. Mr. Kendall testified that he arranged a Swiss German interpreter to participate by phone. The Respondent advised that he did not understand the interpreter. The Respondent requested that everything be in writing. Mr. Kendall wrote down his concerns. Among his concerns was the report that M. had been cutting her forearm. M. came down from her room. The Respondent asked M. to show her forearm which he stated was as a result of an injury she received at hockey. M. also showed her other forearm where, under her sleeve, there was a wrist band covering her forearm.

130During the home visit M. yelled at Mr. Kendall stating that he was making everything worse. The Respondent guided M. back up to the bedroom.

131Mr. Kendall testified that he wanted to speak to the Respondent about ensuring the children had a good relationship with the Applicant. He brought the court Order of Justice Daurio with him and tried to review the parenting covenants contained in the Order. However, the Respondent ripped up a copy of the Order and yelled at Mr. Kendall.

132Mr. Kendall testified that as he was leaving the Respondent’s home after the visit and, was putting on his boots, with his back to the Respondent, Mr. Kendall heard the Respondent scream. When he turned around the Respondent was on the floor and accused Mr. Kendall of hitting him. The Respondent was screaming for help from N. and M. and calling Mr. Kendall crazy. M. and N. came to the top of the stairs and Mr. Kendall asked them if this was normal behaviour for the Respondent. M. yelled at Mr. Kendall to leave and he did.

133The Respondent yelled that he was going to call the police. Mr. Kendall waited at the end of the driveway for the police. When the police attended, Mr. Kendall asked them to perform a wellness check on the Respondent and the children. The police entered the home. The police came out and said that the Respondent did not want to have charges laid but did want to speak with Mr. Kendall. The police facilitated a conversation between the two at the door. Mr. Kendall encouraged the Respondent to take M.’s cutting seriously. The Respondent then admitted to being aware of her cutting. Mr. Kendall told the Respondent that cutting was a sign of emotional stress or distress and that it was an unhealthy way to cope with what M. was experiencing. The Respondent, at the end of the discussion, said he would not receive emails nor speak with Mr. Kendall and that he wanted another worker. The Respondent then offered that M. was cutting because it was fashionable.

134On February 7, 2023 the Respondent sent an email to Mr. Chen, Mr. Kendall’s supervisor. He accused Mr. Kendall of harassment, stated that Mr. Kendall wanted to touch his teenage daughter and accused Mr. Kendall of assault. The Respondent denied there were any cuts on M.’s arm.

135Mr. Kendall testified that he could not determine if the children’s views and preferences were their own or influenced.

136Mr. Kendall testified that the Applicant’s therapist recommended that the children be removed from the Respondent’s care.

137Mr. Kendall testified that he suspected the Respondent was talking with the children about the issues after the worker left.

138The Respondent, when speaking with the CAS, referred to the Applicant as crazy many times.

139M. blamed her mother for the cutting.

140The CAS verified the children were at risk of emotional harm as a result of exposure to conflict and exposure to domestic violence.

Ms. Comegna, CAS Child Protection Worker

141Ms. Comegna testified that she worked with the family commencing February 22, 2023.

142The Applicant provided Ms. Comegna with details of the parenting time she was experiencing with the children and informed her that the children ignore her, do not eat her food, will not speak to her and that they remained locked in their bedroom during visits. Further, the Applicant advised that M. was self-harming.

143Ms. Comegna advised the Applicant that the children’s actions aligned with the information they provided indicating they were not pursuing a relationship with the Applicant based on their personal experiences with her.

144In her testimony Ms. Comegna questioned the Applicant about the therapeutic process as the children had disengaged from the Applicant and questioned whether the court process and the Applicant’s actions would change the children’s disposition and behaviour.

145Ms. Comegna indicated that it was clear the children were impacted by the parties’ separation, but she indicated she was struggling on how best to support the children given that they refused to speak to her.

146Ms. Comegna testified that she was working with the Respondent to address M.’s self-harm and she and the Respondent engaged in safety discussions.

147Ms. Comegna confirmed that the ongoing involvement of the Society was as a result of the children being at risk of emotional harm resulting from their exposure to caregivers’ ongoing conflict and the children’s exposure to intimate partner violence. Ms. Comegna indicated that she was satisfied that M. had a support network and resources available to her to help manage negative feelings/thoughts that led to self-harming behaviour. Ms. Comegna testified that the Society was limited in the supports that could be provided to the family in circumstances where children were choosing one caregiver over another. Ms. Comegna testified that nothing would change unless both parents made some concessions in their thinking, behaviour and actions.

148Ms. Comegna testified that on March 17, 2023 and April 4, 2023 she met with M. and N. M. indicated that she did not want a relationship with her mother because she “left us to die”, she “hates” her, and “I don’t have a mother – she died in August.”

149N., when asked by Ms. Comegna what the Applicant could do to start gaining the children’s trust, said: “end court proceedings and take back allegations.”

150M. indicated to Ms. Comegna that the Applicant “can step out of our lives completely or at minimum pay child/spousal support.”

151Ms. Comegna indicated that the Society considered closing their file as there were no imminent concerns. Ms. Comegna testified that the reason for the consideration of file closing was because the Respondent continued to take steps to address M.’s self-harming behaviours and emotional wellness and that he continued to meet the children’s instrumental and basic needs.

152The children did not engage with Ms. Comegna during any visits that occurred at the Applicant’s home.

153Ms. Comegna found it odd that M. would adopt her father’s narrative on events she did not witness, and she found it concerning that the Respondent would fake an assault on a social worker and manipulate the children.

154Ms. Comegna conceded that it was an area of concern that the Respondent encouraged the children to speak about the Applicant in a very negative fashion.

155Ms. Comegna testified that she never saw the children interact with the Applicant aside from the March 17, 2023 visit after the police came to the residence.

156Ms. Comegna testified that the Respondent assured her that he was doing everything to promote a relationship between the Applicant and the children. One limitation was Ms. Comegna’s inability to force the children to engage with the Applicant.

157Ms. Comegna testified that she received no training on parental alienation.

158Ms. Comegna testified that she was concerned that the Respondent’s actions were impacting the children. Ms. Comegna testified that she was trying to assess the totality of the children’s experience and the impact of the Respondent’s messaging to really try to understand in which aspects the children were influenced versus their lived experiences with the family. Ms. Comegna testified that this was difficult as M. stopped engaging with her and N. would only engage at the Respondent’s home and minimally.

159The children raised no concerns in relation to the Respondent’s physical care of them and they advised that he was supportive of them. Ms. Comegna testified that she was never concerned about her safety in the Respondent’s home. She attended with a second co-worker, Scarlet, a decision made after the incident with Mr. Kendall.

160Ms. Comegna testified that she felt the children were at an age where they could articulate their views and that the children did not appear afraid of the Respondent.

161Ms. Comegna did express concern that the Respondent was sharing information about their conversations with the children.

162Ms. Comegna testified that she did not consider the need for the children to be removed from the Respondent’s care.

Mr. Chen, Child Protection Worker

163Mr. Chen testified that he visited the Respondent’s home one time but did not visit the Applicant. The Respondent’s current home is a small two-bedroom apartment.

164The purpose of the visit was a transfer meeting as Ms. Comegna was taking over the case.

165Mr. Chen testified that parental alienation was not specifically addressed in child protection legislation, guides or manuals. However, one parent denigrating another parent or influencing a child in terms of parenting time views with the parent opposite was emotional abuse of children.

166Mr. Chen testified that there were two risks to the children: a) the risk of emotional harm due to post-separation conflict, and b) the risk of emotional harm of intimate partner violence. Mr. Chen testified that the risks were mitigated during the CAS involvement because there was a no-contact Order in place and the terms were being followed thus reducing the risk that the children would again witness domestic violence. Mr. Chen testified that he remained concerned with the children’s behaviour at visits with the Applicant in terms of what they were saying and their aggressiveness. He did note that the children were attending visits on a regular basis.

167Mr. Chen testified that he was aware that the children have not spoken to the Applicant since September 2022.

168Mr. Chen testified that the CAS closed the case as there was nothing more the CAS could do.

Rosalie Hodson

169Ms. Hodson is a friend of the Applicant. She testified that the Applicant had a close and loving relationship with the children prior to separation.

170Ms. Hodson described the Applicant’s personality as bubbly and happy. She described the Applicant as conservative, with high ethical and moral values, and being devoted to the children.

171Ms. Hodson never saw any concerning behaviour from the Applicant or children.

Mr. Bahoric

172Mr. Bahoric testified that he coached all three of the children. L. was a power skater and N. and M. were figure skaters.

173Prior to the parties’ separation, Mr. Bahoric noted that the Applicant had a good relationship with the children. Before separation his communications were mostly with the Applicant for the purpose of scheduling the children’s extra curricular activities.

174Following the separation, the relationship was strained, and the Applicant was no longer present at extra curricular activities.

Mr. Bendall

175Mr. Bendall is a friend of the Respondent.

176Mr. Bendall testified that the Respondent showed great dedication to his children supporting them in home schooling, hockey, figure skating, baseball, ball hockey and soccer.

Children’s Statements

177The children did not participate in a Voice of Child report for the reasons aforementioned. This Court offered to complete a judicial interview of the two children if both parties agreed. The Applicant opposed the judicial interview with the children.

178Both parties consented to the children’s texts and messages being introduced as evidence. The Respondent did state that he consented to all of the children’s statements being admitted, save and except for one. When the Court attempted to conduct a voir dire on the single statement the Respondent objected to, the Respondent could not identify the objectionable statement. The Respondent was twice asked to identify the statement that he objected to. He could not and did not do so.

179The children’s texts and messages were admitted into evidence. The texts and messages were both necessary and reliable. The statements were necessary given the lack of participation in the Voice of Child report and the opposition to a judicial interview. In terms of reliability, this Court is confident that the statements were made by the children. The Court recognizes that the statements might have been influenced and might not reveal the children’s true statements and the Court has taken this into account when attributing the weight, if any, given to each individual statement.

Mr. Richard Chlup, Expert

180Mr. Richard Chlup was qualified to provide opinion evidence on the parties’ Swiss real estate holdings and what happened to them; searches of governmental documents; and the basics of Swiss bankruptcy law, Swiss debtor creditor law and social assistance. Much of his evidence was relevant to the financial issues and will be commented on later.

181In terms of parenting issues, Mr. Chlup testified that he searched court records in Switzerland and determined that separation proceedings were initiated by the Applicant in 2016. An Order restraining the Respondent from contacting the Applicant and the children was put in place in Switzerland in 2016 and the children were placed in the care of the Applicant. The request for contact between the Respondent and the children was initially refused but by decision of the Swiss Court dated December 14, 2016, the Respondent was permitted to see the children under supervision one Sunday per month. The restraining Order between the spouses continued. An official guardian was appointed for the children and there are reports from the guardian that when the family moved to Canada in March 2017 the guardianship ended as the whereabouts of the family was unknown. On December 28, 2016 there was a decision of the Swiss Court that permitted the father to see the children under supervision with one hour of Skype per week.

Decision-Making, Parenting -Time and Mobility Discussion

182Under the Divorce Act, R.S.C. 1985 c 3 (2nd Supp), the court is guided in decision-making and parenting time orders based on the best interests of the children.

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(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.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

183In determining parenting arrangements for the children, the Divorce Act requires the court to make a decision in the children’s best interests.

184There are no good solutions for these children. The Court struggled with the parenting options proposed by each party in an attempt to determine a parenting solution that would cause the least amount of damage to the children.

185The Applicant requests an Order that the children, M. and N., be placed in her care to the exclusion of their preferred parent, the Respondent, and against their expressed views and preferences. M. is 15 years old and N. is 14.

186The Respondent, by contrast, states that he is leaving Canada for Switzerland in August 2024. The Respondent requests permission to return to Switzerland with the children. The Respondent argues that the children want to go, do not want a relationship with the Applicant and they would be reunited with their brother, L. Further, he argues, Switzerland is their country of origin and there are opportunities available for the children that are not available in Canada. For example, he states that he can apply for social assistance in Switzerland. He is precluded from doing so in Canada as a result of his Visa status.

187L. is 19 and has been living in Switzerland for over two years. Accordingly, this Court declines to make any decision-making or parenting time Order in respect of L.

188The evidence heard through the trial results in this Court concluding that the children and Applicant had a close and loving relationship until separation in 2022. In the summer of 2022, just before the separation, the Applicant and the children, M. and N., went to Japan. The evidence confirmed that the relationship between them was comfortable and they would openly express positive physical affection. There was no anger or hatred between the Applicant and the children before separation.

189After separation the close relationship between the Applicant and the children evaporated and manifested itself in severe parent-child contact problems.

190It is not contested that following the separation, the Respondent shared court documents with the children, copied them on correspondence and spoke to them about the litigation. An example is the July 14, 2022 lengthy letter the Respondent wrote to the Applicant’s parents where he discusses court. The following excerpt comes from that letter which the Respondent copied to all three children:

“The fact is that E., your daughter, hurt me personally as a husband very badly through her actions and these actions with this man as a decent wife, which the children also agree with me.”

“A solution must be made only between E. and G., if the family together or separate will has a change for the future. All other solutions are the end of all connections between E. and me, means the kids will turn left or right and everyone will only lose, like the try from E. as example in 2016 / 2017 was showing us this perfect.”

191Immediately after separation the children, and the Respondent, exerted tremendous energy trying to get the Applicant to return home. The content of the messages sent to the Applicant from the children no longer contained any expression of affection. M. also stopped speaking Japanese.

192The following statements give a flavour of the children’s involvement, demonstrates the Respondent’s inability or refusal to shield the children from the conflict, and demonstrates the children’s participation in trying to force the Applicant to return home.

193An excerpt from an undated email from M. (exhibit 28) to the Applicant states:

“Hi Mami, I read the statements that you made to the court and swore to. You left out many crucial details that would change your argument tremendously. It is unfair and inappropriate. I cannot express how hurt I am that you would take my words and twist them to make you look better. All I wanted was for you to come home, so we could work through all the misunderstandings that are clearly happening. I tried everything and nothing worked in the slightest. I love you so much Mami but you hurt me. What you are doing is hurting L., N., Papi and me……”

194On August 21, 2022 M. sent a text to the Applicant stating: “I wanted to text you again about the current situation. L., N., and I will not be accepting or following a separation, especially one made through a court or a lawyer. We would like you to come home and discuss this with us.”

195On August 21, 2022 M. sent a text to the Applicant stating: “Everything will be broken forever if you don’t come home.”

196On August 31, 2022 L. wrote to the Applicant:

“I believe this conflict can be solved in a civil, private way without the influence of friends, grand-parents, and especially any unrelated people such as law officials. This has made me make my decision to side 100% with Papi. This does NOT mean I hate Mami, it only means that the person she is pretending to be with this over-reaction and emotional abuse towards the family will be dead to me.”

197On September 2, 2022 M. sent a text to the Applicant stating: “Mami please stop making false statements and pushing the lawyers and courts. If you don’t come home I can’t text you anymore because I don’t support a separation.”

198On September 7, 2022 M. wrote to the Applicant which included the following:

“I don’t want to be with people that are hurting and destroying my family. It hurts me to have to push you away, but at the same time I feel that my loving and careful mami is gone / taken over by someone completely else that is full of hatred and evil….I also don’t understand why you wouldn’t give us money for food / shelter / electricity but you are willing to pay for the club…..I don’t think I will ever forgive you if you pull this through, as by attacking Papi, you are not only hurting him, but also L., N. and me forever. We love and need him endlessly.”

199In September 2022 N. wrote the following note:

“My mom lieing, lieing, lieing [ sic ] all the time to the court, grandparents, family and friends; leaving when it gets hard instead of going for the challenge; gold dinging [ sic ] and obsest [ sic ] with figure skaters; everything she is doing is ruining everyone’s lives she does not care …”

“My dad 72% disable and his life long sickness but still works hard for kids and wife; finances suports [ sic ] the family (dad, mom, L., M., N.) since before I was born; 100% dad & husband & coche [ sic ] & mentor & organizer; smart and knows a lot about a lot like sport … illegible …and much more.”

200On September 25, 2022 M. wrote to the Applicant: “The Court ordered Papi to send us where money, lawyers, and court’s can’t make us happy or want to be with you. You are not our family anymore, because of your actions and decisions.”

201On October 11, 2022 M. wrote to the Applicant: “Don’t do this again. I don’t want to see you at any sports or activities, or school or I have to stop the last sports and activities. Stop the court and lawyer or leave us alone forever. You are not the victim so be careful that we can heal.”

202On October 27, 2022 the children wrote a lengthy letter to the Applicant that included the following: “You have to realise now, there is no minimally good outcome for us on this path with the court. Too much damage will be done and too much mney [ sic ] will be spent for nothing. IT MUST STOP NOW! It’s now or never.”

203On October 30, 2022 M. wrote to the Applicant and stated:

“If you show up to any event of ours we will refuse to participate. You know when they are, as you have received a list from Pia, and possibly from the CAS. You also have teamsnap and the internet. If you want a separation from this family be aware what you are doing, and just fulfil your duties and/or leave us alone.”

204On December 11, 2022 N. sent an email to the Applicant stating, in part, as follows:

“Hi You coming yesterday to my competition could have gotten dad in jail and a fine of 1000 dollars because of the 100 metres restriction and all these processes that you started. You were aware that he is there with me, you were not welcome by me and I can not accept that you are trying to hurt dad and us children again, again and again. Dad and we children did and will do nothing wrong and you know this. This is your problem and bad game, but you already lost a lot and will lose ore [ sic ] every day until you have only your sadness for your own. You have the documents from the court on Caseline from dad and you know well form M. and me, that we do NOT want to see you and especially not in our sport or school. You have to follow the order from the court and you have to respect the kids as well. I also do NOT want you to come, so now I give you two options:

1. You write me an email saying you will NOT come to any of my competitions or training in the future and really not come to them, by Wednesday Dec 14, 2022 and I will go further with dad and compete, trian [ sic ] and have fun. or
2. If you don’t write me an email that means you come or not either way, I will not be able to compete because of your behaviour, I will be in my room hating you more and more by the hour. It's on you to accept it and choose option #1, it’s about your own decision to walk away from us, not fulfill the minimum of duties, so be out of the family now and live your dream, but also pay for the consequences. Or do you accept it and destroy my last season in Canada too.

205On October 8, 2022 M. and N. wrote a lengthy letter to the Applicant which included the following:

“You have 24 hours starting October 8, 2022 at 2:30 p.m. to make up your mind. Everything has been discussed multiple times, and everyone is aware of all the facts. Your choices are your family, yes or no. It is as simple as that. Stop and we will find a way forward in a more civilized and private way or continue and never hear from us again. We have told you so many times and given you so many chances to tell your side of the story, but you refused.”

“If you choose to continue, Papi will have to hire a lawyer Sunday, which will cost us another $50K, which Pia has to pay because Papi cannot. Papi will be acquitted most of the time.”

“L. also tried to contact you, but your response just showed us that you are delusional, a;lmost the entirety consisting of J and his wonderfulness. This was your last chance with L., and now he is no longer willing to talk to you. He does not weant to hear from you, because you are a careless, hateful monster.” [ sic ]

“You will never hear from your children again if you take your current path. We write this to you not as a threat but as a warning. You have one final chance to turn this around.”

“You have to visit the victim service to explain that you have been mentally stressed and that the lawyer forced you on August 17 th 2022 to make this statement to the police over bthe phone to form a case against Papi, which is the impression because of some funny statements such as change of residency, which is untrue, etc.”

“All the kids are 100% behind Papi. We have a children’s lawyer to make sure our voices get heard and we can stay with Papi forever.”

“You have 24 hours and if you don’t follow the steps above you will never hear from us again, and we will never want to be with you again. You are not our Mami, as our Mami would have completed that list in a heartbeat. You killed my Mami, but hopefully she get reborn and can come back and you hateful monster can be gone forever. Papi and L. also gave you enough chances, and if you do not listen to this one it will be hard to forgive you because we have to ask so much of Pia, who has two small children herself.”

206The children were unsuccessful in their attempts to have the Applicant return home. The children started using parenting time as a method of expressing their dissatisfaction with the separation.

Parenting-Time Transitions

207Himel J. made an Order on September 14, 2022 that the Applicant have parenting time with the children every Thursday from 4:00 p.m. – 8:00 p.m. and every Sunday from 1:00 p.m. – 6:00 p.m. From September 2022 through March 2023 the children did not transition into the Applicant’s care.

208The Applicant gave an example of what would happen at one of these attempted transitions. The meeting point was in front of the community mailbox, 200 metres from the Respondent’s home. The Applicant would wait in front of her car. She would bring gifts and snacks and would wait for the children. Sometimes they arrived by bike, sometimes they jogged and sometimes they walked. When they would arrive by bike, they would pass in front of the Applicant saying nothing, ignoring her like she was a stranger or, sometimes, they would give her their middle finger. Sometimes they did a U-turn. The street was lined with trees. The Applicant testified that the trees colours changed from green to red to white. The situation remained the same. Despite having no transitions, the Applicant did not miss any visits, she attended all days parenting time was scheduled.

209The Applicant also testified that the Respondent was present, on occasion, at these transitions in front of the house. He never ensured a successful transition.

210M. assaulted the Applicant twice during these unsuccessful transitions. The first time was because the Applicant refused to sign a prepared list of things the Applicant allegedly did wrong. The second incident was on February 5, 2023 when M. kicked the Applicant, punched her and verbally assaulted her because she ‘destroyed everything.’

211On January 10, 2023 Justice Daurio made an Order that the Respondent would be fined $1,000 every time the transition did not occur. There were $17,000 in fines accumulated before the Respondent did ensure the children attended the Applicant’s home.

212On March 14, 2023 Daurio J. made an Order expanding parenting time. It commenced with a full five days of parenting which was followed by parenting time every second Friday to Monday. The first visit between the Applicant and the children resulted in her calling the police who made a referral to the Children’s Aid Society.

213For the first five-day period, the Applicant had less than 24 hours to prepare but she bought groceries, made the children’s favourite foods, and made them a place to sleep. The children, M. and N., did not talk to her. They did not eat the food she prepared for them. M. took the tray with food and smashed it on the floor. In addition, M. had a hockey game but would not permit the Applicant to drive her. The Applicant knew the game finished close to 11:00 p.m. and went to pick her and N. up. At first they refused to get in the car. Eventually they got in the car and, while the Applicant was driving, M. pulled her water bottle from her back-pack and poured water on the Applicant’s head. M. kept kicking the Applicant while she was driving. When they all reached the Applicant’s apartment, M. was upset. M. kicked the Applicant. She destroyed dishes. She kicked over an air humidifier. There was water, food and broken dishes on the floor. The Applicant called the CAS emergency number at midnight. As a result of that phone call, the CAS worker called police. The police officer came to the apartment at 5:00. a.m. The kids were asleep very deeply.

214The Applicant testified about positives during that first visit and there were two: the children attended the visit and stayed.

215The Applicant testified that the visits have continued every second weekend in that manner ever since. The children mostly stay in their room with the door closed. Despite that, the Applicant prepares for each visit by decorating, if there is a cultural celebration, and going to the Japanese grocery stores for Japanese groceries and candies that N. likes and to purchase their favourite treats. Since the children refuse to eat her cooking, she subscribed and receives Hello Fresh meal kits, so the children can pick the menu. The Applicant testified that she bakes for them but they do not eat what she bakes.

216When the Applicant does not have parenting time she testified that she texts all three children everyday, at morning and at night. They do not respond to her texts.

217When asked if there have been any positives, the Applicant testified that there were glimmers of hope. The Applicant bought a waffle maker which the children use. The Applicant asked N. if she could make a waffle for the Applicant when she was making hers. The first few times N. did not make one for the Applicant, however, one day out of the blue she made one for the Applicant and left it for her on a plate. M. left a handwritten note to the Applicant after one weekend visit telling her how to care for her hamster. The children used to like dumplings. Now she makes them and freezes them and the children will eat those. N., when asked, will pass something to the Applicant instead of ignoring her. M. was crying in the bathroom on the first visit but now will, sometimes, sing in the shower.

218The Applicant testified that she never shared court documents with the children. To assist her, the Applicant completed a course, Children in Between (March 31, 2023) and High conflict Solutions (January 26, 2024).

219The Applicant testified that her personality is that she does not like to fight. Whenever she had negative emotions in the marriage, she would swallow the negative emotions rather than discussing them because she wanted to keep the family intact.

220As a result of the continuous child-parent contact problems, therapy was ordered. Therapy has not been successful in reconciling the Applicant and the children because it did not occur.

Therapy

221Therapy was first ordered in 2022. Therapy was delayed by the Respondent’s actions. Initially the Respondent did not participate in the selection of a therapist. The Respondent refused then to consent to therapy after the Applicant was given authority to select the therapist. Therapist, Diana Polak, was selected.

222On May 5, 2023 Diana Polak withdrew as a result of the Respondent’s demands to amend the consent. One of the Respondent’s many comments made in the proposed changes to Ms. Polak’s consent was:

“The children have repeatedly expressed orally and in writing that they do not want to take part in therapy. L. is in Switzerland and M. and N. don’t go to therapy voluntarily. Although G.B.-M. and E.B. have tried to use their parental authority so far, the children do not agree. The children are staying with G.B.-M., and he cannot and does not want to physically force the children to do so as it would not be in the best interest of the children.”

223The next therapist proposed was Shazeeda Haroon. The Respondent did not submit his intake form. The Respondent then objected that the therapist was too far away. Ms. Haroon could not proceed without the consent of the Respondent or a court Order.

224On March 14, 2024 Justice Bennett, recognizing the obstacles in proceeding with necessary therapy, chose the therapist. He selected Ms. Sandra Garibotti.

225Immediately the Respondent had issues with Ms. Garibotti’s process and service Agreement. On May 16, 2024 Ms. Garibotti sent correspondence to the court. She indicated the Applicant completed the service Agreement and the $3,000 retainer. The Respondent, by contrast, requested a number of changes to Ms. Garibotti’s Agreement and sent a lengthy chart of expectations before therapy could commence. The response to the service Agreement provided by the Respondent was very long and very detailed. What Ms. Garibotti understood was that the Respondent did not agree to the points in the service Agreement.

226Ms. Garibotti testified that she was unable to provide family therapy. She testified that she might be agreeable to working with the Applicant and the children if they were placed in the care of the Applicant. Given that she was providing testimony at this trial, she was unsure how that would impact therapy. She would like to assess what the children have been told. If the children have a negative feeling about her, she does worry that it might be a barrier.

227The Respondent is angry that his marriage is over. He has employed a scorched earth policy to get the Applicant to return home and he has done so to the detriment of the children. The Respondent’s use of the children as leverage in his misguided desire to continue the marriage demonstrates his lack of insight. His petulant behaviour demonstrates his immaturity and inability to place his children’s needs ahead of his own. The children suffer as a result of the Respondent’s actions.

228It is clear to this Court that the Respondent is blind to the impact his actions are having on the children or he is indifferent. M. is self-harming and he suggests such behaviour is fashionable. The Respondent is firmly in denial.

229The Respondent has put in place many obstacles to ensure the children do not receive therapeutic services. He refused to participate in the selection process for a therapist and then objected to all three therapists approached. It is demonstrative of the continuation of a pattern of obstruction that the Respondent has advanced in the litigation.

230Pursuant to section 2 of the Divorce Act, a child of the marriage is defined as including a child of two spouses or former spouses, who, at the material time, is under the age of majority and who has not withdrawn from their charge.

231It is noteworthy that, pursuant to the Children’s Law Reform Act, a child of sixteen or more years of age may withdraw from parental control.

232M. is 15 years old. She will be 16 on September 8, 2024, in less than three months. M. is demonstrating distress with her self-harming behaviour. Her last chance at having a normal childhood and a positive relationship with both parties is a window that is slowly closing. Although in the short term it will be difficult for M. to understand and accept that she must live with the Applicant, this court hopes that with time and therapy she will understand why living with the Respondent is abusive to her and toxic.

233N. is 14 years of age. Her views and preferences, like M.’s are, pursuant to the Divorce Act, a significant consideration.

234The children have experienced much instability in the past several years. They resided with the Applicant during the parties’ first separation in Switzerland in 2016. The children left their country of origin and moved to Canada in 2017. The children experienced their parent’s separation over the past two years commencing in 2022 when the Applicant left the home. The children have engaged, with the encouragement of the Respondent, in an unsuccessful campaign to have the Applicant return home.

235The Respondent advances the position that the children are justified in their anger toward the Applicant. The Respondent states that the children are angry that the Applicant left, causing them to move homes. The children are angry, the Respondent states, because the family has no money and the Applicant, who works, has made no contribution to their care for the past two years. I agree that the children, at their ages, are justified in their anger over the breakdown of their parent’s marriage. Indeed, this position was similarly articulated by the evidence of the Children’s Aid Society child protection workers who testified that the children’s anger was understandable based on their experiences.

236While the Court is of the view that the children’s anger is understandable, the magnitude of the anger is not proportionate. It is clear on the totality of the evidence that the children’s anger and disappointment over the breakdown of their parent’s relationship has been reinforced and cultivated by the Respondent. The Respondent has not encouraged and facilitated a relationship between the Applicant and the children. The Respondent has not shielded the children from the issues in the litigation. The Respondent’s anger at the Applicant does not permit him to place his own feelings ahead of the best interests of the children.

237The Respondent testified that the parties need a resolution. This Court will provide it. It is up to him to embrace it. The Respondent’s management of his family and its fortune has been abysmal. The Respondent engages in conflictual relationships routinely. The Respondent has no relationship with his mother, father or brother. The Respondent is in conflict with his estranged wife. The Respondent is in conflict with the Office of the Child’s Lawyer, the Children’s Aid Society, Legal Aid Ontario and the Courts. The Respondent had conflict with three proposed therapists. He had conflict with Applicant’s counsel, Mr. Ludmer. The Respondent is the common denominator.

238As stated, there are no good options here. Regardless of the Court’s decision, this family is forever fractured and will remain so until the Respondent gains insight, is able to put his anger aside, is able to park his emotions and put his children first. If the children go to Switzerland with the Respondent, their relationship with the Applicant will not be repaired until the children mature. The Respondent testified he will return to Switzerland. If the children are placed with the Applicant, they will lose out on a relationship with the Respondent and, perhaps, their brother, L.

239The first option, advanced by the Applicant, is for the children to be placed in her care to the exclusion of the Respondent for a period of 90 – 120 days. This option is exceedingly problematic as the children are 14 and 15. It imposes a parenting regime on the children that is contrary to their views and preferences. Currently they attend visits but do not speak to the Applicant, do not eat her food and they have destroyed the Applicant’s home on occasion. This option will likely result in police involvement to enforce. As M. has a history of self-harm, the Court is concerned about the impact to M. The Court has no confidence the Respondent will embrace any Order despite his statements. This Court is of the view that all children under the age of 16 are deserving of protection from an environment that does not promote their best interests, that is toxic and that is harmful.

240The second option, advanced by the Respondent, is that the children should remain in his care and be permitted to return to Switzerland. This option would result in the children’s stated views and preferences being honoured. However, this Court is not satisfied that the children’s views and preferences are their own. The children are very heavily and negatively influenced by the Respondent. This option would mean that the children’s relationship with the Applicant will be non-existent. It will also result in a placement with the Respondent whose actions have demonstrated that he is unable and unwilling to put the children’s best interests first.

Mobility

241The Respondent has provided written notice of his intention to move the children to Switzerland pursuant to the notice provisions under section 16.9(1) of the Divorce Act.

242The Applicant objects to the move.

[243] Pursuant to section 16.92 (1) of the Divorce Act, in deciding whether to authorize a relocation of children of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16 , a) the reasons for the relocation; b) the impact of the relocation on the child; c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement; e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

244Pursuant to section 16.93 (2) of the Divorce Act, the onus is on the Applicant to establish that the relocation is not in the best interests of the children as they reside the vast majority of the time with the Respondent and the Respondent is the party that proposes the relocation.

245I decline to authorize a relocation with the Respondent for the reasons aforementioned. In addition, the children have experienced much instability over the past several years. The children have no relationship with the Applicant nor the maternal side of the family. Therapy is essential for these children. The Respondent has opposed therapy. The Court has confidence that the Applicant will ensure the children’s therapeutic needs are met. The Court is confident that the Applicant has and will continue to put the children’s best interests first.

246For all of these reasons,

ORDER

1. The Applicant shall have sole decision-making and primary residence of the two minor children of the marriage namely, M.B born in 2008 and N.B. born in 2010.
2. The Respondent is restrained from contacting the Applicant and/or the children, M.B. born in 2008 and N.B. born in 2010, either directly or indirectly, for 120 days; the Respondent is restrained from communicating with the Applicant and/or the children, either directly or indirectly, for 120 days; and the Respondent is restrained from coming within 200 metres of the Applicant, the Applicant’s home, the Applicant’s work, the children, the children’s school, the children’s extracurricular activities or any place the Applicant and/or the children may be for 120 days.
3. After 120 days, the Applicant and the Respondent may communicate but they may only communicate by way of Our Family Wizard and the number of communications limited to two per week unless there is an emergency.
4. This Judge shall meet with the children, M. and N., on a timeframe recommended by the Applicant in consultation with her therapist. The purpose of the meeting is to explain to the children the rationale for this Court’s decision. If the Applicant and therapist determine that this meeting is unnecessary it shall be communicated to the Court and the meeting will not be scheduled. Otherwise, the proposed timeframe shall be communicated to the Trial Coordinator and a meeting scheduled. The children shall meet with me, on record, in the presence of the court reporter.
5. After 120 days, parenting time between the Respondent and the children shall be at the Applicant’s sole discretion.
6. The children shall participate in reunification therapy with a qualified therapist selected by the Applicant who has sole decision-making authority. The Respondent’s consent to therapy is dispensed with. The Respondent is not entitled to any therapeutic information including the location of therapy nor the content of the therapy so as to protect the children from intrusion, interruption and harassment.
7. The parties shall share the cost of the therapy equally.
8. The Respondent shall engage in therapy with a therapist well versed in high conflict separation and severe child-parent contact problems.
9. The Respondent shall only be involved with reunification therapy if requested to participate by the reunification therapist and only to the extent established by the reunification therapist.
10. The Applicant shall retain the children’s passports, health cards, and other issued government documentation.
11. The Respondent shall, within seven days, pack all of the children’s belongings including clothing, electronics, toys, and other items and deliver them to a third party chosen by Applicant and communicated to the Respondent by Applicant’s counsel.
12. Commencing October 1, 2024 and on the first of every month thereafter, the Respondent shall pay to the Applicant child support for the children in the amount of $755 based on an imputed income of $50,000.
13. The parties shall share section 7 expenses in proportion to their incomes. For 2024 the Applicant shall pay 66% and the Respondent shall pay 34%.
14. On June 1 st of each year the parties shall exchange Income Tax Returns and adjust child support and apportion the section 7 expenses in accordance with their proportionate share of income.
15. The claims for spousal support are dismissed.
16. The Respondent shall provide the Applicant with an equalization of net family properties, within seven days, by delivering the piano, cello, two violins, massage table, photo albums and Dyson fan to a third party identified by the Applicant’s counsel.
17. The divorce is severed from the corollary relief and can proceed uncontested by filing the translated Marriage Certificate and Affidavit for Divorce.
18. This Court Orders that, pursuant to section 36(2) of the Children’s Law Reform Act, the York Regional Police and Toronto Police Service and any other police service having jurisdiction where the children may be found are directed to forthwith locate, apprehend and deliver the children to the Applicant.
19. This Court Orders that, pursuant to section 36(4) of the Children’s Law Reform Act, the York Regional Police and the Toronto Police Service and any other police service having jurisdiction where the children may be found shall do all things reasonably able to be done to locate, apprehend and deliver the children in accordance with this Order.
20. This Court Orders that, pursuant to section 36(5) of the Children’s Law Reform Act, for the purpose of locating and apprehending the children in accordance with this Order, any member of the York Regional Police and the Toronto Police Service and any member of any other police service having jurisdiction where the children may be found may enter and search any place where he or she has reasonable and probable grounds for believing that the children may be, with such assistance and such force as are reasonable in the circumstances.
21. This Court Orders that, pursuant to section 36(6) of the Children’s Law Reform Act, an entry or a search referred to in subsection iv) of this Order shall be made only between 6:00 a.m. and 9:00 p.m. standard time.
22. This police enforcement Order shall expire in 120 days (maximum of six months) following the date of this Order.
23. If the parties cannot agree on the issue of costs regarding this trial, I shall consider the request for costs. The Applicant shall serve written submissions on the Respondent and file them electronically, through the Trial Coordinator, within 20 days of this decision being released. The Respondent shall serve written submissions on the Applicant and file them electronically, through the Trial Coordinator, within 10 days of receipt of the Applicant’s submissions. Submissions shall be limited to five pages exclusive of the Bill of Costs and Offers to Settle. There shall be no right of Reply.

The Honourable Justice G.A. MacPherson Date: June 28, 2024

[1] Section 17 of the Child Support Guidelines [2] Section 18 of the Child Support Guidelines [3] Section 19 of the Child Support Guidelines