COURT FILE NO.: FS-21-44672-0000 DATE: 2024 01 31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tobin Jerrod Zikmanis, Applicant AND: Sophie Zikmanis, Respondent

BEFORE: Chozik J.

COUNSEL: D. Goodman, for the Applicant Gabrielle Pop-Lazic, for the Respondent Christine Torry, counsel for the OCL Mary-Jo Franchi-Rothecker and John Franchi, in person, self-represented, for Accendus Group

HEARD: January 23, 2024

Endorsement

Introduction

[1] There are three motions before me:

Motion #1: By way of Notice of Motion dated December 6, 2023, the Applicant (“Father”) seeks primary residence and decision-making responsibility in respect of the parties’ two children. In the alternative, he seeks 50/50 parenting time and shared decision-making. In the further alternative, he seeks “residency time” with the children and that the Respondent (“Mother”) be fined $2,000 for every scheduled visit the children miss.

Motion #2: By way of Notice of Motion dated December 28, 2023, the Applicant seeks a declaration that the Respondent is in breach of the order of Coats J. dated April 20, 2023 and that her pleadings in respect of parenting issues be struck. In the alternative, he seeks an order dismissing her claims for primary residence and decision-making in respect of the children, and other relief in the further alternative.

Motion #3: By way of Notice of Motion dated January 9, 2024, the Respondent seeks an order terminating reunification counselling with Accendus Group.

[2] Mary Jo Franchi-Rothecker and John Franchi of Accendus Group attended at the hearing of these motions and, at the outset, made submissions.

[3] Ms. Rothecker stated that Accendus Group wished to extricate itself from providing reunification therapy to this family. Ms. Rothecker acknowledged that Accendus Group “entered the fray” but it did so because it was felt that there was no choice. As a result, it can not continue to work with this family. Ms. Rothecker submitted Accendus Group’s invoices to the court and asked that direction be given in respect of the payment of those invoices.

Background

[4] The parties began living together in 2002. They were married in December 2007. They have two children, Henry (12 years old) and Spencer (10 years old). The parties separated during the Covid pandemic on March 1, 2021. They continued to live together in the matrimonial home until April 2022, when the Applicant moved out.

[5] The parties have different perspectives on key facts, including the parenting roles assumed by each during the marriage and certain events post-separation. This matter is on the blitz list for trial that commences March 25, 2024. It is likely to get some priority and be called for trial near the top of the list because it involves parenting issues, which are given priority.

[6] The Office of the Children’s Lawyer (“OCL”) was appointed to represent the children. With a clinical assist, the OCL has presented the views and preferences of the children. On these motions, the OCL’s findings are presented in two affidavits sworn by Jacqueline Iafrate, a clinical agent with the OCL.

[7] It is undisputed that from the time he moved out of the family home in April 2022 until December 2022, the Applicant did not ask to see the children. It is also not disputed that he did not have parenting time with the children from April 2022 until September 2023.

[8] In March 2023, the children told the OCL that they did not want contact with the Applicant but thought they might in the future. At that time, the children confirmed that they had not spoken with the Applicant since he left the family home. Their only contact with him for more than a year at that point was seeing him at their sports events and occasional texts from him to which they did not respond.

[9] On April 20, 2023, Coats J. made an order on consent of the parties that Accendus Group provide reunification therapy for the family. The order provides that the parties complete the intake material and respond to inquiries of the Accendus Group. The order requires both parties to cooperate with Accendus Group in the following terms:

4. All parties shall cooperate with the requests and directions of the Accendus Group in terms of providing documents, providing consent to speak with collaterals, attending appointments and ensuring the children attend appointments.

[10] The order further provides that the services of the Accendus Group continue until completion of its report, unless otherwise terminated by the court, and that fees be shared as follows:

7. The fees of Accendus Group related directly to the children, including but not limited to, any contact with any of the children’s collaterals, including the OCL, shall be shared by the parties equally. Each of the parties shall be responsible for his or own costs related to their individual involvement.

[11] In September 2023, the Respondent’s relationship with Accendus Group broke down. Despite the order for reunification therapy being made in April 2023, as of September 2023 no therapeutic work had been done. In evidence presented on this motion, Accendus Group took the position that its role was not to provide therapeutic work but to identify the “issues and provide” recommendations.

[12] On December 6, 2023 Ms. Rothecker swore an affidavit in support of the Applicant’s motion #1, alleging (amongst other things) that the Respondent was alienating the children, isolating them, and that it was urgent that the court either immediately shift primary residence to the Applicant with no contact for 90 days with the Respondent, or that a shared parenting schedule be put in place. Ms. Rothecker was then cross-examined on that affidavit on January 11, 2024.

Motion #1

[13] The basis for this motion is the affidavit of Mary-Jo Franchi-Rothecker dated December 6, 2023. Ms. Rothecker swore this affidavit on behalf of the Applicant in support of his motion seeking an order that would result in a drastic reversal of the primary residence and decision-making that has been in place for these children since April 2022.

[14] In her affidavit, Ms. Rothecker states categorically that the Respondent “breached” the court order made by Coats J. and the Family Therapy Intervention Agreement entered into by the parties, and that she used these breaches to delay the reunification process. Ms. Rothecker states that the Respondent “misused” the Grievance procedure available under the agreement with Accendus Group, and “sabotaged” the reunification process for the children. She states that the Respondent continues to “alienate” the children from their father, which is damaging to them. She states that the Respondent continues to isolate the children and that the Accendus team has made a finding of “alienation”.

[15] Ms. Rothecker further states in her affidavit that Accendus Group has concluded that the children’s statements were not accurate or reliable, and that the Respondent’s statements about the children’s needs and wishes cannot be determinative in this process. She recommends that that primary residence be immediately changed to be with the Applicant and that he be responsible for decision-making.

[16] I find that these are incredibly strong statements. These are very serious allegations against the Respondent. The veracity and reliability of such unequivocal sworn statements of someone in Ms. Rothecker’s position had to be tested through cross-examination in respect of the motion. Ms. Rothecker was cross-examined on her affidavit.

[17] The Applicant submits that the cross-examination was a “waste of time,” and nothing more than a tactic intended to delay the Applicant’s motion. I disagree. The cross-examination was essential on these motions. It was critical to shed more light on the evidence of Ms. Rothecker and the involvement of Accendus Group.

[18] During cross-examination, Ms. Rothecker testified that the word “alienation” in her affidavit was used as a sort of “catch all word” not intended to cast blame but to generically describe what was happening with this family. She also testified that Accendus Group could not say what the Respondent was doing to contribute to the “alienation”. Rather, the finding that there was “alienation” was based on the fact that there was resistance by the children to see their father. Ms. Rothecker testified that word “alienation” in her affidavit was intended to “draw [the family’s] attention to a very difficult situation”.

[19] I find Ms. Rothecker’s evidence very concerning.

[20] In family law litigation, “alienation” has very specific meaning. As Chappell J. held in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 371-372:

[…] parental alienation falls within the definition of family violence under the CLRA as it is pattern of coercive and controlling behaviour towards the child and the alienated parent, and it is also psychologically abusive to both. In A.M. v. C.H., 2019 ONCA 764 (C.A.), the Ontario Court of Appeal highlighted the important point that a finding of parental alienation by a trial judge is not a psychiatric diagnosis of any syndrome or condition; rather, it is a factual finding that one parent has damaged a child’s relationship with the targeted parent by engaging in a pattern of inappropriate behaviour that has caused the child to unjustly fear or reject that parent. Accordingly, the court emphasized that expert evidence is not required to make such a finding (at para. 31). The court reiterated in Bouchard v. Sgovio, 2021 ONCA 709 (C.A.), at para. 72 that expert evidence is not required for a trial judge to conclude that a parent has engaged in behaviour that has alienated a child from their parent. In that case, the court upheld the trial judge’s finding of parental alienation where the father had engaged in behaviour that had sabotaged the child’s relationship with his mother, there had been a simultaneous change in the child’s behaviour towards his mother, the father had not cooperated with therapeutic assistance to address these concerns and he lacked insight into how damaging his behaviour had been towards the child (at para. 71). Van Melle J. provided a useful overview of the notion of parental alienation in Bors. She referred to the decision of Thomson J. in M. (L.M.A.) v. M. (P.C.), 2011 MBQB 46 (Q.B.), and specifically the following description of parental alienation that Dr. Michael Stambrook provided during his testimony in that case:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn't appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent's role.

[21] “Alienation” is not a “catch all word” and must not be used lightly.

[22] Ms. Rothecker’s allegations of alienation against the Respondent do not appear to be supported by evidence on these motions. For example, it is alleged that the children’s views and preferences should not be considered because they are the result of the Respondent’s influence and coaching, yet neither Accendus Group nor the Applicant are able to point to anything that the Respondent is doing to contribute to this.

[23] It also seems that in assessing the reasons for the children’s reluctance to spend time with their father, Accendus Group has taken into account any of his conduct towards the children post-separation. He has not been consistent or present in their lives. He chose to have no relationship with the children for over a year. The impact this might have on them doesn’t appear to have been taken into account. Rather, the sum of Ms. Rothecker’s evidence in cross-examination seems to be that since the children are reluctant to spend time with the Applicant there must be alienation, and it must be the Respondent who is causing it.

[24] Ms. Rothecker’s assertions are strongly contradicted by the evidence of the OCL clinician, Jacqueline Iafrate. Ms. Iafrate’s evidence reveals no alienation or tainting of the children’s views or preferences. Rather, according to the OCL, the views and preferences expressed by the children are based in real events that are not disputed by the Applicant. According to the OCL, these children have genuine concerns about their relationship with the Applicant honestly.

[25] The OCL submitted that the children felt abandoned by the Applicant. The separation and his withdrawal from them was during the Covid pandemic, which compounded their trauma. Their reluctance to see him and spend time with him stems from their unresolved feelings about the separation, his absence, “disappearance”, and his conduct. Both children are now working with individual therapists, who are trying to help them cope with those complicated emotions.

[26] The OCL takes the position that these children require stability, certainty, and time to process difficult emotions arising from the breakdown of their family and their father’s disappearance from their lives. I am advised that the children are angry and confused by the Applicant’s conduct. They cite his refusal to acknowledge what they perceive as his broken promises to them and failure to respect their wishes. For example, they asked that he not attend certain basketball practices, but he would disregard these wishes and show up anyway. He had promised them that they would not have to move post-separation, but now the family home is up for sale. He has not yet taken responsibility or acknowledged to them any responsibility for how this might have made them feel.

[27] The OCL further submitted that the children are struggling to face uncertainty at the prospect of the imminent sale of their home where they have lived all of their lives, and possibly changing their schools. Further stability at this time is vital.

[28] On this motion, I am not prepared to make findings of fact in respect of the allegations of alienation made by the Applicant and Ms. Rothecker. The trial in this matter is only months away. Those findings of fact are best left to trial.

[29] The OCL is strongly opposed to any such change on behalf of the children. I agree with the OCL that in the circumstances of these interim motions, a drastic change in the living arrangements or parenting time for these children is not in their best interests.

[30] The position taken by the OCL stands opposite to the findings and recommendations made by Accendus Group, and Ms. Rothecker as set out in her affidavit. I note that the OCL has spent considerable time with the children, whereas Accendus Group met them twice and then decided categorically to discount their views and preferences.

[31] I am not prepared to put much weight on Ms. Rothecker’s evidence at this stage or Accendus Group’s findings.

[32] On a motion, expert opinions are given limited weight. In L.M. v. P.D.A.B., 2012 ONSC 4696, at paras. 15-16, the court held:

15 […] A trial affords an opportunity for thorough evaluation of all aspects of the expert’s report including the author’s credentials, methodology, observations, factual findings, theories and recommendations. There is no equivalent opportunity for such testing and analysis at the motions stage. Nor is there the opportunity to assess credibility and factual disputes; or consider the weight to be given to the assessment in the context of the overall evidence which will be available at trial. Genovesi v. Genovesi (1992), 41 R.F.L. (3d) 27; Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.).

16. As a result, courts should be extremely cautious about relying on untested professional reports at a motion pending trial, or implementing even some of an assessor’s recommendations on a temporary basis. Genovesi (supra); Grant v. Turgeon (supra); Mayer v. Mayer, [2002] O.J. No. 5303; Kirkham v. Kirkham 2008 CarswellOnt 3644 (S.C.J.). [Emphasis added]

See also: Miller v. Miller, 2022 ONSC 7237, at para. 25.

[33] Additionally, the Applicant has put forward no evidence as to where he lives or works or what the parenting plan would be if he had primary residence of the children. To the best of the Respondent’s knowledge, he was last couch surfing at friends’ homes and perhaps sleeping in his car. She is not sure whether he is still working. He does not deny this. He does not clarify this. He remains silent about this, except through counsel who says that he will figure it out once the order is made. That is not good enough for the court to seriously contemplate putting these children in his full-time care.

[34] I also note that the Applicant has refused to have any discussion of any sort with the Respondent and refuses to speak to her about the children or any parenting issues whatsoever. He has effectively given her the silent treatment. He has done so for years. Before parenting time, he must demonstrate some ability to put the children’s interests first and co-parent effectively. To date, he has failed to do so.

[35] Not only is the Applicant unable to put forward a parenting plan to this court, but he is also unable to put forward a plan to the children. He has not told them where he lives. According to the OCL, uncertainty about this exasperates the children’s reluctance to spend a lot of time with the Applicant. It is understandable that they would worry about what their life would look like if they had to spend any significant time with him because he has told them nothing of his living arrangements or plans.

[36] On the evidence before me on these interim motions, I am not satisfied that a change in the primary residence, decision making or parenting time is in the children’s best interests: s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and s.24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. Indeed, I conclude that such a drastic change is contrary to their best interests.

[37] Based on the motion materials filed, on an interim basis, I am not prepared to change the primary residence of these children or grant any of the relief sought by the Applicant: Miller v. Miller, 2022 ONSC 7237, at para. 25. This motion is brought on unreliable and conflicting affidavit evidence where credibility of parties cannot be determined. As well, if the status quo changes now on an interim motion, there is, the risk that the change will be undone at trial, resulting in the children moving twice rather than once, creating more instability. The court requires compelling reasons to depart from the status quo that exists prior to the hearing of the motion. I am not satisfied that there are compelling reasons in this case to change the status quo or any of the changes proposed by the Applicant be in their best interests. I find that the proposed changes would be contrary to their best interests.

[38] The Applicant’s motion #1 is dismissed.

Motion #2

[39] The question on this motion is whether the Respondent breached the order of Coats J. by failing to cooperate with Accendus Group. I am not satisfied that she has.

[40] It is alleged that the Respondent breached the order because she refused to provide consents for Accendus Group to contact collaterals, refused their services and withdrew and the two children of the marriage from the court ordered reunification therapy.

[41] I do not accept these allegations.

[42] The Respondent completed all the intake forms, provided the retainer and signed the agreement with Accendus Group as required by the order. It is not disputed that between June and September, 2023 the Respondent met with Accendus Group 9 times, and spent 15 hours engaged in what was really an evaluative process. This included a home visit by Accendus Group on July 6, 2023 to meet with the children and another visit with the children at their offices.

[43] There were some scheduling issues in August 2023, but this is not surprising. It was summertime and the children had busy schedules with various activities.

[44] Challenges really arose when Accendus Group insisted on getting written consents from the Respondent to speak to her mother and sister. The Respondent had concerns about this: she details in her affidavit that she had a falling out with them following the death of her father in July. She effectively became estranged from them. She was not holding back or hiding anything about this. She invited Accendus Group to speak to other collaterals, including her stepmother, but they refused.

[45] Accendus Group spoke to the Respondent’s mother and sister without her written consent. Some of the findings of alienation made by Accendus Group are based on what these collaterals said. As a result, the Respondent’s relationship with Accendus Group deteriorated. She filed a grievance under the procedure set out in their agreement, alleging that Accendus Group was biased in their approach.

[46] It is not clear why Accendus Group insisted on obtaining consent to speak with the Respondent’s mother and sister before setting up any therapeutic work with the children and their father. The Order for reunification therapy was made in April. The intake, consents, retainer etc. were provided within a month. There had been a plethora of appointments with the Respondent and visits with the children, but as of September still no meetings between the children and the Applicant. The Respondent showed no unwillingness or reluctance to participate in reunification therapy, but no such therapy took place.

[47] During her cross-examination, Ms. Rothecker testified that it was their role to identify the scope of the parent-child contact problems and to identify some solutions. To that end, Accendus Group was gathering information. Ms. Rothecker denied that the role of Accendus Group was intended to be therapeutic. She testified that they were not therapists for the family.

[48] In my view, Accendus Group misconceived its role. Paragraph 1 of the Order of Coats J. dated April 20, 2023 states that the appointment of Accendus Group was for “INTAKE/reunification process”. Given the history of these parties, it is clear that reunification therapy was what was needed. Even in his factum, at paragraph 14, the Applicant states the parties agreed in April 2023 to have Accendus Group “work with the parties and the children on reunification therapy”. Reunification therapy was also suggested by another professional, prior to April 2023. It was on that recommendation that the parties came to a consent order before Coats J.

[49] Instead of providing therapeutic intervention as was intended by the court order, Accendus Group saw their role as evaluative. With respect, if an assessment was needed the court would have ordered an assessment either under s.112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, or s.30 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12.

[50] Despite the failed process with Accendus Group, the Respondent was prepared to allow the children to spend time with the Applicant. Working with the OCL and the children’s two therapists, the Respondent agreed to commence parenting time in September 2023: the children agreed to start spending an hour a week with their father playing basketball. That parenting time has now also been expanded to include 2 hours on both Tuesdays and Thursdays, as well as one visit on the weekend, to be scheduled around the children’s athletic activities.

[51] In all the circumstances, I am not satisfied that the Respondent breached the order of Coats J. I reject the Applicant’s claim that she was difficult and uncooperative with Accendus Group “from the start”. This is not borne out by her actions. Rather, her actions are consistent with someone who was trying to work with that group.

[52] Given the record of the Respondent’s compliance with the Coats J.’s order, I am not satisfied that she is in breach of it. I find that she used reasonable efforts to comply with the order. The turn of events, and the position taken by Accendus Group, made it impossible for her to continue.

[53] There is no question that the therapeutic intervention this family desperately needed did not take place. But I am not prepared to find that the blame for this falls on the Respondent.

[54] In the alternative, even if I had concluded that the Respondent was in breach of the order by not providing consent to speak to her mother and sister, the relief sought by the Applicant is extreme. It is only granted in exceptional circumstances and where no other remedy would suffice. The threshold for striking pleadings on parenting issues is very high: Parmar v. Flora, 2022 ONCA 869, at para. 43; Purcaru v. Purcaru, 2010 ONCA 92, at paras. 47-49. That threshold is not met here. Not even close. I would not order the relief sought by the Applicant even if the order had been breached because it is totally inappropriate in the circumstances of this case.

[55] Similarly, I would not dismiss the Respondent’s claims in respect of parenting on the Application. Such relief would be disproportionate to the breach. Even if she did not provide written consent for Accendus group to speak to her estranged mother or sister, this does not warrant dismissing her claims in respect of the children without a proper hearing.

[56] The Applicant’s Motion #2 is dismissed.

Motion #3

[57] I am satisfied that there should be an order that the involvement of Accendus Group in this case should terminate. Accendus Group was retained to provide reunification therapy to assist the parties’ two children re-establish their relationship with the Applicant. Both parties, the OCL and Accendus Group acknowledge that, given how things have developed, this is no longer possible.

[58] I am satisfied that the reunification process cannot continue with Accendus Group. They cannot continue to work in a collaborative or therapeutic way with this family. Additionally, they misconceived the role they were appointed for which was to provide reunification therapy (i.e. a therapeutic role) for this family.

[59] The Respondent’s motion is granted. There shall be an order terminating the reunification therapy by Accendus Group.

Accendus Group’s Invoices

[60] Accendus Group sought direction in respect of the payment of its invoices. The Respondent concedes that she is responsible for the cost of Ms. Rothecker attending for cross-examination for 3.5 hours.

[61] According to the order, the parties were to share the fees related directly to the children, including but not limited to, any contact with any of the children’s collaterals, including the OCL. Accendus Group must first identify with precision which of the invoiced amounts fall under this category, if any.

[62] The order also states that each of the parties shall be responsible for his or own costs related to their individual involvement.

[63] Ms. Rothecker testified in cross-examination that she came to swear the affidavit at the request of the Applicant’s lawyer and that she never discussed it with the Respondent or her lawyer.

[64] I find that any costs that pertain to the swearing of that affidavit including meetings with Accendus Group’s lawyer, the Applicant’s lawyer, to prepare the affidavit, prepare for cross-examination or prepare for court in any way should be paid by the Applicant. The affidavit was sworn in support of the Applicant’s motion. Accendus Group became his witness. They entered the legal fray and are not a neutral party. They became advocates for him. He is therefore liable for their costs.

[65] If there are any amounts in the invoice that do not fall in either category, the parties or Accendus Group may seek further direction from the Court in respect of payment.

COSTS

[66] The parties are encouraged to agree upon appropriate costs for these motions. If the parties are not able to agree on costs, each may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs) by 4:30 pm on February 15, 2024.

[67] If no submissions are received within this timeframe, and no extension is sought, the parties will be deemed to have settled the issue of costs as between themselves.

[68] If I receive submissions from one party, but not the other, by 4:30 pm on February 15, 2024, I will infer that the party does not wish to make submissions and I will decide costs based on the material that I have.

Chozik J. Date: January 31, 2024