L. (A.G.) v. D. (K.B.)

  • Document:
  • Date: 2018

A.G.L. v. K.B.D. et al.

[Indexed as: L. (A.G.) v. D. (K.B.)]

93 O.R. (3d) 409

Ontario Superior Court of Justice,

McWatt J.

January 16, 2009

 

 

Family law — Children — Custody — Sole custody — Mother engaging in years-long campaign of alienating children from father — Views of children given little or no weight as those views were not their own — Father granted sole custody of children with no access rights to mother except for purpose of counselling.

The parties’ three children, aged 14, 11 and 9, had resided with the mother since they were born. The father brought an application for sole custody of the children, with no access rights to the mother except for the purpose of counselling. The youngest child expressed a desire to spend time with both parents. The middle child did not want any overnight access with the father, and the eldest child did not want any contact with the father. The Office of the Children’s Lawyer took a position different from that expressed by the children.

Held, the application should be granted.

The mother was incapable of supporting the children in a relationship with the father. She had demonstrated for the past 14 years that she would not act in the children’s best interests in that respect. Her unrelenting attempts to alienate the children from the father were tantamount to emotional abuse. While the case law generally supports placing a great deal of weight on the views and preferences of children over 12, there are clear excep ions. One is in a case such as this, where one parent has undermined the child’s relationship with the other parent. If the court finds that there has been parental alienation, the child’s views cannot be seen as their own. The eldest and middle child in this case had not formed their views and preferences from their own experiences. Rather, they had formed those views and preferences solely from the unrelenting influences and behaviour of the mother. As a result, little or no weight was given to the views and preferences of those two children. Some weight was given to the views and preferences of the youngest child. The best interests of the children required that the father have sole custody. The mother was to have no access to the children, pending a review, except for counselling purposes.

 

Cases referred to

Bergen v. Bergen, [2008] A.J. No. 902, 2008 ABQB 237; Boukema v. Boukema, [1997] O.J. No. 2903, 33 O.T.C. 190, 31 R.F.L. (4th) 329, 72 A.C.W.S. (3d) 876 (Gen. Div.); Children’s Aid Society of the Regional Municipality of Waterloo v. A. (B.), [2005] O.J. No. 2844, 2005 ONCJ 220, 141 A.C.W.S. (3d) 63; Filaber v. Filaber, [2008] O.J. No. 4449 (S.C.J.); Mitchell v. Mitchell, [2002] O.J. No. 2504, 30 R.F.L. (5th) 365 (S.C.J.); Pettenuzzo-Deschene v. Deschene, [2007] O.J. No. 3062, 40 R.F.L. (6th) 381, 159 A.C.W.S. (3d) 404 (S.C.J.); Reeves v. Reeves, [2001] O.J. No. 308, 102 A.C.W.S. (3d) 1116 (S.C.J.); Tock v. Tock, [2006] O.J. No. 5324, 154 A.C.W.S. (3d) 1125 (S.C.J.)

Statutes referred to

Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 35, 36(2) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 141 Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(8), (10), 17(3) [as am.] [page410]

 

APPLICATION for sole custody.

Harold Niman and Donna Wowk, for applicant. Charles Amissah-Ocran, for respondent. Elizabeth McCarty, for Children’s Lawyer.

 

 

[1]  MCWATT J.: — There are two issues to be decided in this trial. First, is who shall have custody of the three female children of the marriage, aged 14, 11 and nine. There has never been any order for the children’s custody since the parents separated. They reside with their mother, K.D. The applicant, A.L., seeks sole custody with no access rights to their mother except for the purposes of counselling. The applicant alleges that K.D. has and continues to alienate the children from him. He offers this court two choices as a solution. They are:

(1)leave the children with the respondent and ensure that the children will have no relationship with him; or

(2)give the applicant sole custody of the three children and, with counselling and time, the children may have a relationship with both parents.

 

[2]  The second issue I must decide is whether K.D. is in contempt of the following orders made in relation to the children:

(i)  Order of Justice Benotto dated March 13, 2000;

(ii)  Order of Justice Horkins dated July 21, 2006;

(iii)  Order of Justice Czutrin dated August 21, 2007;

(iv)  Order of Justice Frank dated March 4, 2008;

(v)  Order of Justice Czutrin dated June 25, 2008.

 

[3]  For many reasons which will become clearer with an outline of the facts of this case, I feel that it is necessary to decide the custody issue first and as soon as possible. These reasons address only that issue. I will release further reasons shortly dealing with the allegations of contempt against K.D.

The Facts

I Custody and access 1993-1998

 

[4]  The parties met in Toronto at the Wellesley Hospital, where they treated patients in common. The applicant, now 56 years old, [page411] is a vascular surgeon. He was divorced from his first wife prior to his relationship with the respondent. The respondent, 42 years old, is a chiropodist. They started dating in July 1993. A.L. owned a home at 96 Binscarth Road at the time. K.D. was living at home with her parents.

 

[5]  By March 1994, K.D. was pregnant with their first daughter, D.D. The parties discussed abortion. However, they finally resolved to have the child. K.D. wanted to marry A.L., but he did not feel that he knew her well enough to do so. Instead, they agreed that the respondent would move from her mother’s home into a rented apartment where they could see each other and establish a relationship.

 

[6]  Before the three-month rental agreement expired on the apartment, K.D. left the unit and went back to her mother’s home. She felt that she needed help with her pregnancy and that the applicant was working too many long hours to be with her and to help her. The applicant was unable to contact the respondent once she returned home. When he called the D. residence, whoever answered the phone would hang up on him. He was not allowed to see K.D. at her mother’s home. In a discussion between the parties at a restaurant down the street from the respondent’s mother’s home, K.D. told A.L. that there were other people — her family — who were going to “fill in” to assist with her pregnancy.

 

[7]  A.L. did, in fact, attend to K.D. daily during her pregnancy and attended all of her appointments at her obstetrician. He also delivered D.D. on November 11, 1994. The respondent and the couple’s daughter went to A.L.’s house after the birth, where his family were able to meet D. That night, however, K.D. returned to her mother’s home and A.L. had little contact with the respondent and his daughter in the time that followed D’s birth.

 

[8]  K.D. would, on occasion, page the applicant to pick D. up for the night. She would have A.L. return the child by 6:00 a.m. the next day. A.L. might see the pair if K.D. needed anything, but hardly saw them at all.

 

[9]  Sometime in 1995, the respondent commenced a paternity suit. The applicant contacted a family lawyer about the issue of access to his daughter. In about June 1995, the parties agreed upon issues of paternity of the child, child support and the concept of access to D. by A.L. At that point, A.L. believed the parties could work together to parent their child. In fact, however, K.D. dictated whether or not A.L. could see D., and any contact between father and child was sporadic.

 

[10]  By the middle of 1996, the parties agreed to marry. They did so on November 23, 1996, when D. was two years old. A.L. was, [page412] then, 44 years old. K.D. was 30 years old. According to A.L., both the respondent and his family expressed doubt about the couple’s intentions to marry. However, K.D. wanted the marriage and A.L. was ready to have a family.

 

[11]  During this period, before and after the marriage, the applicant shared a reasonable relationship with K.D.’s family, but no relationship at all with K.D.’s mother. The respondent’s mother refused to speak to A.L. and spoke only in Polish in his presence. She had never approved of A.L.’s relationship with her daughter, feeling that K.D. had shamed the family by having D. out of wedlock.

 

[12]  Shortly after the marriage, the respondent became pregnant with J.L.

 

[13]  A.L. participated fully in the pregnancy, attending all doctor’s appointments and delivering J. on August 19, 1997.

 

[14]  Nonetheless, the applicant felt marginalized and was allowed no input on issues regarding the children. K.D.’s mother would call late at night and she and the respondent would speak in Polish. A.L. was never told why she called or what was spoken of between the two women.

 

[15]  Although A.L. took D. to school and picked her up and spent time with his daughter, J., in the middle of the night

when she woke up, he was not allowed time alone with his children by the respondent. He was permitted to read them bedtime stories. When he was permitted to bathe the children, on one occasion, J. had a bowel movement in the tub. He was never allowed to bathe the children again. K.D. made an issue out of A.L.’s changing of J.’s diapers. She accused him of sexually abusing the child.

 

[16]  When K.D. went back to work, the two children were taken to their maternal grandmother. The applicant spent time with his wife and the children before the two girls were dropped off at their grandmother’s home, but A.L. found more and more that the children were not living at his home. He suggested the family hire a nanny and use K.D.’s family to babysit only if necessary. K.D. would not agree.

 

[17]  K.D. had made a habit of sleeping with D. before the parties married. She continued to do so after the marriage. The respondent testified that it was easier to have D. sleep with her because the child didn’t like her room in A.L.’s home because it was dark and also because D. was made to feel rejected because A.L. did not want D. in the bed with them. The respondent also felt that D. felt rejected by the applicant because “he didn’t want her” to be born. A.L. had suggested the abortion when K.D. had become pregnant with D. After being rejected by D., noted the [page413] respondent, A.L. did not attend to D. at all so she spent all her time attending to the child.

 

[18]  A.L. presented the respondent with a book dealing with the inappropriateness of children sleeping with their parents and told her that she should stop the practice of sleeping with D. The respondent did not stop. The applicant noted, at the time, that K.D. had problems separating herself from D. For example, K.D. had problems dealing with D.’s attending a pre- kindergarten Montessori school and took her out of the program without consulting A.L. Generally, the applicant did not challenge his wife in order not to provoke an argument. Increasingly, K.D. spent more and more time at her mother’s home with the children. K.D. explained that D., two years old at the time, was jealous of the applicant because he took time away from her spending time with the respondent. D. refused to go to A.L. and wouldn’t want to be with anyone but the respondent. In fact, K.D. fired a nanny the couple hired after J. was born because “D. had a hard time with her” and the nanny was not “connected to D.” and K.D. wanted her daughter to be happy.

 

[19]  Frankly, this testimony of the respondent’s was quite telling of a pattern of behaviour and way of thinking that has been the focus of many of the child and family experts who touched this case. K.D. seems unable to differentiate herself from her children. On all of the evidence I have heard in this case, it is clear that K.D. has no concept about how a two- year-old D. felt and thought or how to change certain behaviours in children. Instead of encouraging a relationship between D. and her father, she purposely kept the child and the applicant apart and seemed to encourage any difficulties the child had in bonding with her father because the respondent allowed them no time together.

 

[20]  In around 1998, the couple fought over K.D.’s use, without telling him, of the applicant’s credit card. The argument took place in front of the children. K.D. told A.L., “Don’t fuck with me. Ever!” They separated shortly afterward. A.L. moved to the third floor of the home until the home was sold in March 2000, and the couple physically separated.

 

[21]  Before the couple married, during the marriage and after their separation, there are a number of incidences of note which set the tone of this couple’s relationship up to the present time. First, prior to the marriage, A.L. and K.D. would go out together for dinner. K.D.’s mother would take care of D. K.D. would leave the table several times to talk to her mother by phone. A.L. felt that the respondent’s mother controlled the respondent and used the frequent contacts with her daughter to prevent the couple from having a good time together. The applicant also noted that [page414] the respondent’s mother would complain of chest pains in order to keep her daughter’s attention focused on herself rather than on A.L.

 

[22]  On one occasion, at the front of K.D.’s mother’s home, the mother quickly exited the home and confronted A.L., insisting “[C.] is mine! [C.] is mine to help me with her father.” While yelling this to A.L., the respondent’s mother was punching the respondent at the same time. The respondent’s father was very ill at the time and died not long afterwards. A.L. took the respondent and left the mother’s home, but K.D. had the applicant stop the vehicle at a pay phone, where she spoke to her mother for an hour. The couple then went home.

 

[23]  K.D.’s mother accused A.L. of raping the respondent and impregnating her. K.D. was too afraid to contradict her mother at the time, but eventually told her that she was not raped.

 

[24]  A.L. came to learn that K.D.’s mother seriously and consistently beat the respondent as she grew up. A.L. saw the mother regularly wear a strap around her neck in her home before they were married. A.L. witnessed the mother drag one of her young grandchildren (K.D.’s sister’s child) from one part of her basement to another part of it. The applicant was reassured by the respondent, however, that the mother would never do anything like that to their children.

 

[25]  K.D.’s evidence in a May 9, 2008 affidavit filed in this court starkly describes the kind of upbringing she had and the effect it had on her. She swore the following:

 

I have used physical force to discipline my children. I grew up in an immigrant strict Catholic home. I know what it is like to be slapped severely for not obeying your parents. I had bruises for weeks after my beatings. The more severe the beatings became the angrier I became, and the more determined I became to stand my ground. Needless to say, the beatings continued and continued. No one talked to me about the issues . . . no one tried to reason with me because my views were not their views. They beat me until I became submissive, but my anger grew inside. That is why we have so many angry children.

 

[26]  During their marriage, the police were called to intervene in different situations on three occasions. On the first occasion, in 1998, A.L. was holding J. in his arms. K.D. demanded that he give her the child, grabbed the baby from his arms, put the child on the floor and began to push the applicant, which ended in his falling on the kitchen table and onto the floor. Although no evidence of the parties’ weights and heights was led in the trial, my observation of them was that, at least in 2008, A.L. is much larger in height and weight than the respondent. During the incident, D. was screaming and appeared to be horrified. K.D. disappeared from the kitchen where the incident had taken place only [page415] to appear again with abrasions on her knuckles and the police in the house. The police spoke to the couple, A.L. left the house and stayed away for a while. No charges were laid against either party.

 

[27]  In the second incident where police were called, the parties were in the bedroom of the Binsgarth home. K.D. pushed the applicant into the closet doors and called the police. J. was in her crib in the room at the time. The police attended, spoke to the couple and left. No one was charged.

 

[28]  On a third occasion, after A.L. had spoken to his lawyer about how the respondent spoke to him in front of the children, he was advised by counsel to try and tape the respondent during such a conversation. While A.L. and his family were in their vehicle going grocery shopping during the incident, he recalled that somewhere near Bloor St. and Castlefrank Rd., he tried to turn on the tape recorder in his pocket. K.D. saw the tape recorder, began to berate the applicant in front of the children and tried to grab the recorder but could not. A.L. exited the vehicle and K.D. locked all of the doors with herself and the two children inside. A.L. called the police to get the respondent to open the doors. The police attended and told the couple to cool off. A.L. testified that he did not need to cool off after the incident, but only felt relief that he was separating from the respondent. 1998-2000

 

[29]  The couple separated in late 1998. While A.L. lived on the third floor of his home, he had virtually no contact with his two daughters. He had no time alone with them at all.

 

[30]  The applicant enlisted the assistance of the Catholic priest who had married him and K.D. A.L. converted to Catholicism once the couple had decided to marry. K.D. made no attempts to attend for the arranged counselling.

 

[31]  During this period, A.L. made arrangements for counselling with another professional in family matters. On the third meeting, K.D. did not attend. The doctor terminated the counselling.

 

[32]  On February 9, 1999, in the petition for divorce, the applicant swore the following:

25. The order sought in paragraph 23 is in the best interest of the children for the following reasons:

(a) The Husband believes that the Wife, without good reason, has deliberately attempted to limit any meaningful involvement he can have with his children. He is concerned that the Wife’s over-protective parenting will have negative effects on the children’s development. Despite his clear opposition since D. was born, the Wife has continued to choose her mother, who is not in good health, as the caregiver for the children. The Wife’s mother openly [page416] dislikes the children’s father, insists on speaking Polish to her daughter in his presence and will not take any direction from him or even allow him to pick up the children while in her care.

The Petitioner has consistently advised the respondent that he wishes to have an active role in the raising of the children, including sharing supervision of them at mealtimes, settling them in bed at night, helping decide who their caregivers should be and deciding on their schooling. The respondent does not accept the Petitioner’s parenting input nor agree with his views on encouraging more age-appropriate independent behaviour in the children. As a result, the Petitioner’s responsibilities as a father in the ongoing marriage have continued to be eroded. The Petitioner fears if he were to lose custody on separation, that he will have little, if any, meaningful input into the raising of the children, and the children will not develop to their full potential.

Prior to the date of separation, the Wife often demeaned the Husband in front of the children and, since they have been living separate and apart under the same roof, her comments have become increasingly derogatory and inappropriate. When the Husband recently returned from a conference, the Wife told the children in front of him that he had “abandoned” them. The Wife is now attempting to punish the Husband by alienating the children from their father, without any apparent concern for the impact of her conduct on the children.

 

[33]  The effects of K.D.’s behaviour before and after the separation are evidenced most clearly in the words of D. to her father. D., who was five or six years old at the time, told her father, “You’re not going to be my daddy anymore. Uncle G. [The respondent’s brother] is going to be my daddy.” She also told her father, “I’m going to make your life difficult” and “Dad, just do what Mummy says. It’s much easier.”

 

[34]  Whenever A.L. travelled on business during these times, he would call home, but no one would answer his calls.

 

[35]  Although separating in November, in December 1998, the parties resumed their relationship for one night. Their third child, K., was conceived. She was born on September 16, 1999.

A.L. had no involvement in K.D.’s third pregnancy as he was given little information about it. In fact, he found out about the child’s birth from D.’s teacher. He visited the respondent and the child in the hospital.

 

[36]  The respondent slept with all three children in the master bedroom of the couple’s home on Binsgarth.

Court Orders

 

[37]  Various orders were made while the couple was separated but living under the same roof. On March 8, 1999, an order for custody and access set out a schedule for the applicant to have time with his children. He did not get that access as a result of the respondent’s control over the children. [page417]

 

[38]  On June 3, 1999, the court ordered an assessment of the family by Dr. Barbara Fidler with a Parent Questionnaire to be filled out by both parties and delivered to Dr. Fidler by June 11, 1999. During the assessment phase of Dr. Fidler’s report, the applicant had access to his children most of the times ordered by this court. Dr. Fidler’s Parenting Plan Assessment Report was delivered February 1, 2000. Dr. Fidler’s Report and Evidence at the Trial

 

[39]  Dr. Fidler noted K.D.’s inability to support the children’s relationship with their father in 1999 and 2000. Her evidence about this conclusion came from the following observations of and experiences with the respondent, the applicant and the children:

(i)K.D. was astonished when Dr. Fidler wanted to see the children with their father;

(ii)  K.D. advised that A.L. was not permitted to pickup or drop-off the children at her mother’s home, where they were staying at the time;

(iii)  the children did not have any opportunity to spend time alone with their father as K.D. was always present during court-ordered access;

(iv)  K.D. had a very strong belief that the children could be harmed by A.L.;

(v)  K.D.’s level of vigilance and monitoring was unusual:

(vi)  Dr. Fidler noticed a change in D.’s behaviour when her mother was around, which Dr. Fidler noted as significant behaviour for a five-year-old child;

(vii)  Dr. Fidler agreed that D.’s view of her father was based more on her mother’s actions than her father’s actions;

(viii)  Dr. Fidler had scheduled a visit with K.D. and A.L. during a period of time when the children were supposed to be napping or in school. K.D. changed the children’s schedules that day and the children were present. Dr. Fidler explained that they could not have the discussion with the children present;

(ix)  K.D. was unable to trust anyone other than her own mother to take care of the children; [page418]

(x)K.D. had noteworthy anxiety about the children being apart from her and about her being apart from the children;

(xi)  K.D. overprotected the three children to the point of infantilizing all of them. D., at five years old was not yet toilet trained. J., at three years old, still used a bottle to feed at night; and

(xii)  K.D.’s concerns about A.L.’s parenting ability were not validated during the assessment.

 

[40]  Dr. Fidler concluded, in February of 2000, that The children are at significant risk for becoming aligned with their mother and in turn alienated from their father. Presently, and given her age, D. is the child most at risk. She is likely to set the stage for her younger siblings, who may follow suit at a younger age than is typical. Clinical intervention is necessary to assist K.D. to understand the complexity of D.’s feelings and reactions, which are not independent of Mother’s, and to assist her to cope with these in a manner minimizing D.’s loyalty bind and confusion, while at the same time fostering her relationship with her father. Ultimately, D. cannot possibly feel comfortable relating to her father freely and positively given her mother’s negative and angry feelings towards him. K.D. has had significant difficulty complying with Court orders. K.D. has exhibited a notable disregard for authority and remained closed to reason and to opinions that differ from hers. Her concerns, including her perceptions of and her feelings for A.L., his ability to parent, and the children’s needs and best interests, provide a rationalization for her noncompliance. Determining consequences for non-compliance consistent with these children’s best interests presents a significant challenge.

For one, “make up time” becomes cumbersome to agree upon and implement especially given the parents’ animosity and ineffective communication. In addition the three children, each at different developmental stages have very different needs and interests. The parenting plan even if ultimately agreed to, needs to be put into a Court Order. It is recognized though that a Court Order is likely to be insufficient to ensure implementation and Mother’s compliance. Effective implementation will remain even more difficult if not impossible while the parents remain in the same home. Hopefully, the situation will improve after the physical separation, however, difficulties are likely to continue. A parenting coordinator may assist the family to implement their Court Ordered parenting arrangements.

A recommendation for sole custody to one parent, or for joint custody is contraindicated at this time. The parents remain unable to communicate effectively and thus joint custody is unrealistic. While the recommended usual schedule has the children living primarily with their Mother, a recommendation for sole custody to her is contraindicated due the significant concerns related to her parenting and her willingness and ability to involve A.L. in the children’s lives and decision-making. Further, the results indicate that K.D. may misuse the authority that accompanies sole custody. A. L’s input into medical and educational decisions is imperative given not only his knowledge-base, but also given his receptivity to advice and guidance. K.D.’s [page419] overprotective parenting and her anxiety and fears are likely to colour her judgment and decision making at times. Also, A.L. is more likely to involve K.D. in major decisions than she is to involve him. Furthermore, he is more likely to foster the children’s relationship with her than she is with him.

[Emphasis added]

 

[41]  She dismissed any concerns that A.L. was unable to properly care for the children or that the applicant had ever sexually abused the children. 2000-2006

 

[42]  By March 13, 2000, Justice Benotto recommended that Dr. Fidler’s Parenting Plan be implemented. She also recommended counselling for D. and the respondent, noting that the children were at “substantial risk” as a result of their mother’s conduct. There is no evidence that K.D. went to any counselling ordered by the court. A.L. arranged for counselling for D. The child went for a time and then the counselling was stopped by the respondent. D. refused to speak to her father at this time. She was six years old.

 

[43]  Again, on May 4, 2000, Justice Benotto made an order in this matter appointing a parenting coordinator. The schedule of overnight visits set out by Dr. Fidler and ordered by Justice Benotto on March 13, 2000 was never adhered to by the respondent. Instead, A.L. had two weekends with his children after March 13, 2000. During the second weekend, the respondent called constantly to see how the children were doing. D. constantly asked who was calling. After that visit, the children were never brought back to the applicant’s house again.

 

[44]  Pursuant to the March 13, 2000 order, A.L. was to have two evenings per week with the children. In the summer, he was to have time with the children. Some of this access took place. By September 2000, however, the respondent did not give A.L. any time alone with the children.

 

[45]  Between 2000 and 2006, the applicant drove the children to school and back on Tuesdays and Thursdays. He arranged his schedule, as he had done throughout the children’s lives, to accommodate this access to them. In fact, the applicant rarely took his children to school without the respondent being there for the rides.

 

[46]  K.D. also moved away from the applicant’s home after he had chosen to move close to her and the children after the separation. Only after the respondent’s move was A.L. able to take D. to and from school alone. That stopped shortly after it began, however, at the respondent’s whim.

 

[47]  Any attempts that A.L. made through professionals to talk to K.D. about parenting the children failed during this period. He [page420] finally resolved not to go to court because the court orders made no difference to the respondent’s behaviour. He concluded that it would be better to try and bargain for the children with the respondent directly. She had warned him during this period that “If you keep putting pressure on me about the children, you’ll get nothing!” He did not go to court between 2000 and 2006.

 

[48]  The applicant was also supposed to have his daughters overnight on Fridays and overnight on alternate Saturdays. On the first day of this court-ordered schedule, one of the children was allegedly sick and had to be taken to the hospital. He did not see any of the children. The applicant never failed to attend for any access dates except when he had to perform surgeries, but did not get his children for overnight Friday and Saturday during the years 2000 to 2006, except the two weekends set out above. The respondent never gave A.L. a reason for denying this access except at the beginning where the children’s illnesses were blamed and the children were also said not to want to go with him. These girls ranged in age from six years old to one-year old at the time. If the applicant was allowed to see the children, it was at the whim of the respondent and only when they were all together. On odd occasions, to shop or help one of the girls with math, K.D. allowed A.L. to be alone with his daughters.

 

[49]  A.L. began to accept K.D.’s rule over the children. Eventually, he was not allowed to see or speak to the children — but was left shouting good night to them through a door of K.D.’s home. Most times, he was not aware whether they were in the house. He did this for up to two years during this period.

 

[50]  During this period, A.L. joined the girls’ school bodies in order to find out what his children were doing as the respondent told him nothing about them. He went to all of their parent/teacher meetings and kept regular contact with their teachers and the principle of their school.

 

[51]  While having contact with his children during 2000 to 2006, A.L. noticed the following behaviours and heard the following remarks from his children:

(1)D.’s behaviour toward him changed if her mother was not around. She told jokes and seemed more relaxed. When her mother came back into their presence, D. would stop joking and communicating with her father;

(2)  J. told her father that K.D. had told her to pack her bags

and not to come home if she went to her father’s house. (J. was between six to 12 years old during this period); [page421]

(3)J. told the youngest child, K., that she could “never, never, never go to dad’s house”;

(4) The girls talked to their father about wearing their “anti- dad coat”;

(5)D. once asked her father about doing something with him, “Are we doing that because a judge said that?”;

(6)J. and K. would give the applicant hugs. K. once told her father “Don’t tell mummy I did this”, referring to a hug and kiss she gave him;

(7)D. was aware that her mother was trying to keep her away from her father. She would whisper things quickly to her father so that her mother could not catch her speaking to him;

(8)  By 2006, the kids would neither hug nor kiss their father;

(9)D. showed no affection towards the applicant. K. eventually stopped looking at her father. J. would not talk to her father except in a monotone;

(10)  By 2006, D. had stopped talking to her father completely. By that point, all of the children simply ignored him.

 

[52]  Up to 2006 (and in fact to the present), there appears to be no justifiable reason why the applicant’s children have been kept from him or alienated from him to the point where they no longer spoke to him.

 

[53]  K.D. berated A.L. in front of the children during many contacts during 2000 and 2006. She shouted at him over messages he received on his hospital phone, demanding the code so that she could listen to them. On that occasion, J. was present and shouted to her father, “Daddy, just give her the code!” The respondent called the applicant a pig in front of the children. She brought the girls to A.L.’s work and asked him for money in front of them and the nurses on duty. A.L. would tell the girls during these outbursts that the issues were for the adults to resolve and not for them to become involved in.

 

[54]  The applicant’s sister, B.L., attested to the fact that the children were kept away from their extended family from birth up to this period between 2000 and 2006. It was only on occasion, and only in the company of K.D., that she or her family saw the applicant’s children.

 

[55]  During this period, K.D. moved for a second time since the separation further away from A.L.’s home and work. When [page422] questioned about the necessity to move in this trial, she gave no reasonable explanation. The only inference I drew on all of the evidence on this issue is that she moved in order to make it more difficult for the applicant to see his children. The respondent listed her home for sale, but did not move on another occasion as well.

 

[56]  During this period of 2003 to 2006, A.L. would call the respondent’s home to speak to his children. Sometimes he got through, but most of the time he did not.

 

[57]  The respondent told A.L. in the latter part of this time period that it was psychologically damaging to the girls for him to drive them to school alone. She began to treat him worse than she had in the past in front of the children if he dared to ask to see them more often.

 

[58]  By the spring of 2006, K.D. cut off any contact between A.L. and the children because he refused to sign passport applications for the children. 2006 to the trial

 

[59]  On July 21, 2006, the Office of the Children’s Lawyer (“OCL”) was appointed to represent the children at the request of the applicant. A.L. was also given access to the children each Tuesday, Thursday and Saturday. He was never allowed, by the respondent, to see his children pursuant to this order. There is no evidence in the trial as to why. On one access occasion, A.L. knocked on K.D.’s door, the respondent opened the door, said “no” and closed the door.

 

[60]  On July 21, 2006, the applicant was granted telephone access to the children to say good night each Monday, Wednesday and Friday. When he called, there was no answer except once during the period covered by this order. On that one occasion,

K.D. answered the phone and said she would pass on a message to the children. Initially, when he began calling, there was a message machine at the respondent’s home on which A.L. could leave a message. After a while, the machine was disconnected.

 

[61]  By October 2006, A.L. discovered that the respondent was moving once again and had not advised him of this pursuant to the order of July 21, 2006.

 

[62]  A.L. had no contact with the children from October 2006 to May 2007 except by going to their school on Tuesdays and Thursdays as they were being picked up there by the respondent. None of the children acknowledged him except the youngest, who smiled. The respondent would divert the girls’ attention away from A.L. by standing in front of him. During this time, A.L. went [page423] to the extent of leaving notes for his children on the garage door of their home in order to have some contact.

 

[63]  On May 3, 2007, a meeting with the parties and the OCL was cancelled because K.D. took the children. On May 11, 2007, the OCL recommended that D. get counselling and that J. and K. begin seeing their father immediately. A.L. said K.D. refused to respond to anything said at the meeting.

 

[64]  On July 17, 2007, the respondent brought the children to court. Her reason behind this and taking the children to the OCL meeting in May was to have the children tell all involved that it was they who did not want to see their father. As well, however, K.D. herself believed that it would be harmful to the children to have a relationship with their father and to have D. in counselling in order to re-establish a relationship with her father. Yet, she also attested in court to the fact that the applicant was a good father. She offered no reasons ever validated by any of the professionals involved in this case why A.L. should not be allowed to see his children.

 

[65]  On July 17, 2007, two-hour supervised visits were ordered every Saturday between A.L. and J. and K. The access was gradually expanded to four hours. The two girls agreed to the expansion of time through the OCL.

 

[66]  D. was treated by Ms. Susan Chamberlain between October 2007 and March 2008, but had no access visit with her father. By March 2008, D. ended counselling sessions with Ms. Chamberlain, expressing the opinion that the therapist was “on her father’s side”.

 

[67]  On February 29, 2008, J. and K. agreed to expand their visits with their father to overnights. Both girls attended the first overnight visit. During the second overnight visit on March 7, 2008, J. contacted her mother and asked to go home. The respondent contacted the police, who arrived at A.L.’s home late that night. Both children returned to their mother’s home.

 

[68]  After this point, the police were involved on a regular basis. K.D. called them to be present for many of the exchanges saying that she needed witnesses in order to defend herself in court against the allegations of contempt which are part of this trial.

 

[69]  The access supervisors and the police were hearing various messages from the two children during access exchanges. At times, they said they did not want to see their father. On other occasions, they indicated they wanted to see him. On all the evidence, however, I accept that the two younger children were not only warming to their father, contrary to the position of their mother, who maintained that they wanted no contact with him, but were showing affection and love toward A.L. and re-establishing [page424] a relationship with him. D. never indicated that she would see her father until her mother asked her to attend access visits to supervise the two younger children. In exchange, D. received an iPod electronic device. She attended the visits with her father between March 2008 and May 2008 and then refused to have further contact with A.L.

 

[70]  The access visits in this period up to October of 2008 can be summarized as follows:

February 29 to March 1, 2008: J. and K. had shopped with their paternal cousins the week before for bedroom furniture for their rooms in their father’s home. They arrived on February 29, did their usual chores and had dinner. The girls had some problem sleeping and J. complained of a stomach ache. A.L. let the girls sleep together and he slept on the floor of their room.

March 7, 2008: Both girls arrived, but Jacqueline was less enthusiastic about this visit. The three went to a movie, but J. wanted to stay home. J. agreed to go out for dinner. She had a cellphone that she said she needed to tell time. After the movie, the three went home. J. asked to go upstairs to change into her pyjamas, but came downstairs shortly afterwards still fully clothed. The doorbell rang and the police were there at the request of K.D. J. began to cry, saying that she wanted to go home. The children were taken home by the mother. According to K.D., the children had seen a “tomato-like stain” on their sheets and refused to visit their father thereafter. K.D. wrote letters to the OCL about this stain. A.L. denies there was any such stain. Although D. was said to have later taken a picture of the stain and shown it to the respondent, K.D. was unable to produce any photograph of, in this trial, the much-spoken-of stain.

March 14, 2008: The respondent drove the children to the front of the applicant’s home and the two girls told the access supervisor, there to monitor the exchange, that they did not want to attend the scheduled overnight at A.L.’s home. They did not.

March 21, 2008: The same thing happened on this occasion as on the 14th of March.

March 22, 2008: Due to the intervention of A.L.’s lawyer, the girls visited their father during the day. D. attended for the first time, even though previously ordered to see her father [page425] on previous occasions. J. and K. were awkward and standoffish with A.L.’s extended family, who were visiting. The two girls appeared to be influenced by D.’s presence.

April 5, 2008: The applicant agreed with the OCL to go back to day visits to appease the children. D., as well as the other children, appeared to be more comfortable with this decision.

April 12, 2008: The respondent attended with the children and the police. The children indicated that they did not want to go on the access visit.

April 19, 2008: The police attended at A.L.’s home, called by the respondent. They directed him to go to a school nearby.

The police escorted the girls from the respondent’s vehicle to A.L.’s vehicle and he drove them home. He made attempts to calm the girls down. D. was driven to her Catholic confirmation class and the other girls were taken shopping to buy new sheets — ostensibly to calm their fears about the existence of any “tomato-like stains”. The overnight included a stay at A.L.’s log house near Horseshoe Valley.

April 25, 2008: Although scheduled to visit overnight, the girls did not attend. During a phone call by the applicant to the respondent’s home the next day, K. told her father that they had been out shopping instead of visiting him.

April 26, 2008: The respondent took the children to their father for the day. The access exchange was done with the police present, who had been called by K.D. D. attended this visit, but remained distant.

May 2, 2008: The police supervised the access exchange. A.L. had agreed with the respondent not to proceed with his April 25, 2008 allegation of contempt if the children were delivered to him on this date. However, he had not agreed to involve the police. The applicant took all three children to his log cabin.

[71]  In May 2008, the OCL met with the parties and suggested access be expanded to alternate weekends and during the week. The respondent did not agree to the mid-week access proposal.

June 6, 2008: J. and K. attended for their weekend access visit. A.L., who was on the girls’ school council, was involved in preparing and running the school Fun Fair on this weekend. [page426] He and his sister and the two girls attended. K.D. and D. attended, too. At the end of the fair, J.  and K. asked to say good night to their mother. When they returned from their mother, J. asked to go home to the respondent. She offered her father no reason for the request. K.  was confused and upset. The children’s suitcases were still at A.L.’s home. A.L. let the children go home with their mother. Later that night, the police called A.L. about the luggage as K.D. had attended their station complaining that she needed the children’s clothes retrieved from the applicant’s home. A.L. suggested that he drive over to the station with the luggage, but K.D. would not agree to this and wanted the police to retrieve the items from the applicant’s home. The police did not have the time to do as K.D. requested. As a result, she stayed at the station with the children until 3:00 a.m. the next morning, until she was told by the police to go home. K.D.’s concern was that there were outstanding allegations of contempt against her for which she needed witnesses in her defence.

June 27, 2008: The police attended A.L.’s home and advised him that the girls did not want to attend.

July 8, 2008: J. attended, but K. did not. D. called J. on a cellphone and the two had been emailing each other during the visit, after which J. asked to go home. A.L. tried to convince his daughter to stay, but she insisted on leaving and went home.

Summer 2008: The applicant had his daughters J. and K. for two weeks during the summer. He took them out of town to his sister’s cottage and to the log cabin. He bought them a puppy. They all had a good time. When they left their father to go home on August 22, all appeared to be normal.

September 12, 2008: A.L. saw his youngest child, K.J., refused the access visit. She and her sisters were driven to A.L.’s house. J. was asked by her father to join him and she simply repeated “No, no” without explaining why she would not go on the visit. She looked angry.

September 26, 2008: The respondent took the children to A.L., but they all refused to get out of her car.

 

[72]  Court-ordered access has not taken place between A.L. and the three children since this time except for one visit between K. and her father in October 2008. [page427]

 

[73]  Telephone contact with his children, ordered August 21, 2007, did not take place on numerous dates from the date of the order to the trial date. On most occasions, there was no answer when the applicant called. On other occasions, he spoke with one or two of the children. Other times, the respondent answered and advised the applicant that the children did not want to speak to him.

 

[74]  Throughout this trial, the applicant has not had the access to his children ordered by this court. He has complied with directions from the OCL, York Children’s Aid Society and his lawyers in participating in counselling and parenting programs to create an atmosphere to assist in the children’s development and in order to re-establish a relationship with them.

 

[75]  K.D. presented no evidence of having taken counselling recommended to her in recent years. She has spoken out about counselling for her daughter D., insisting that it would be emotionally harmful and that D. was too busy with school work and other activities to take on counselling as well.

 

[76]  Throughout her testimony, K.D. maintained that she has always encouraged her children to go to their father’s home, but that it was they who did not wish to see their father for various reasons.

 

[77]  Many of the facts I have found are not based on much of K.D.’s evidence at this trial. She had difficulty remembering things like whether the children saw their father during certain years, whether she spoke negatively about the applicant to the children and other details which could have helped me to understand what went on in her home during the 15-year span covering the issues in this case. The Position of the Office of the Children’s Lawyer

 

[78]  It is the position of the Office of the Children’s Lawyer that the current situation cannot continue for the children. The children are taken to A.L.’s home on alternate weekends and sit in their mother’s vehicle while their father tries to convince them to come into his home for an access visit. They refuse. The OCL submits that the anxiety and stress created by this arrangement is not in the best interests of the children.

 

[79]  The Children’s Lawyer’s interviews with the children reveal that both J. and K. want a relationship with their father, but have not visited him regularly since September 2008. The Children’s Lawyer does not feel that K.D. can change her long-standing inability to support a relationship between the children and A.L. and, if left in her care, the children will have no relationship at all with him. This, they maintain, is clear from the respondent’s evidence at trial, which lacked any plan for the applicant’s access to his children. [page428]

 

[80]  The OCL believes that D. will likely be traumatized given her long-standing views of her father and that the only way that a change of custody can be implemented is with the assistance of a specialized program that deals with children who have been alienated from their parents and with intensive therapeutic assistance. The Children’s Lawyer supports a plan to address and minimize the damage that has been done to the children to this point in time by placing the children in the care of the parent who can best accomplish it. A.L.’s Plan

 

[81]  The applicant wishes sole custody with no access to the respondent for a period of time as recommended by any counsellors that will be engaged to treat the children. He hopes to take D. to a specialized program dealing with children suffering from alienation from a parent. He intends to take time off work for a month or more to facilitate the change in custody. A.L. intends to hire a full-time nanny and arrange his schedule, as he has done in the past, around caring for his daughters. He has supportive family members, including his sister who testified that she would make herself available to assist A.L. during any initial change in custody of the children from the mother to her brother.

 

[82]  A.L. also has the support of neighbours and colleagues at work in his push to get custody and to care for the children on an ongoing basis.

 

[83]  A.L. is committed to continuing counselling for himself and the three girls. K.D.’s Plan

 

[84]  Although K.D. gave evidence of her philosophy of raising children, she offered no plan to support a relationship between her children and their father.

Analysis

Child alienation

 

[85]  The applicant alleges that his children have been and are being alienated from him. Dr. Barbara Fidler was qualified as an expert in areas of clinical psychology, custody and access assessments and high-conflict custody disputes, including parental alienation cases. She testified about the signs of alienation of children from a parent. Filed as exhibit 8A is Chapter 6 of a book she is publishing on the topic entitled “Understanding Child Alienation and Its Impact on Families”. Her research, in [page429] part, is derived from the clinical research of others. For example, she refers, in the book, to the work of Richard Gardner and his term “parental alienation syndrome (PAS)”. This term is defined as “a form of emotional child abuse almost exclusively seen in separated and divorced families in custody disputes”.

 

[86]  I note that A.L. is alleging the alienation in this case began from the time each of his three children were born and has continued to the present day.

 

[87]  The respondent did not significantly challenge Dr. Fidler’s evidence about the concept and parameters of child alienation nor did she offer any evidence that contradicted the doctor. Although she did not accept Dr. Fidler’s assessment dated February 2000, again, she did not shake Dr. Fidler’s evidence in the trial as it related to the doctor’s conclusions eight years ago that the children faced a serious risk of aligning with K.D. and being alienated from A.L. She noted as far back as when D. was about five years old that she was already aligned with her mother against the applicant. Dr. Fidler predicted that unless something changed in the family dynamic, that the other children would do the same.

 

[88]  Dr. Fidler’s evidence was that K.D. questioned A.L.’s ability to care for the children. She expressed a belief that A.L. might do something sexually inappropriate with the children and, as a result, had a high level of vigilance and monitoring when it came to access between the applicant and the children. This raised a red flag for her eight years ago regarding alienation of the children. So much so that she made no recommendation that K.D. have sole custody of the children, which the doctor commented would have been the usual thing to recommend since the children had been with K.D. all of their lives.

 

[89]  What gives this eight-year-old report such weight in this trial is the fact that, on the evidence before me, not much has changed in K.D.’s behaviour since she was observed by Dr. Fidler. The children have aged and Dr. Fidler’s predictions and fears have, in fact, been realized. I would go so far as to say that, but for Dr. Fidler’s refusal to recommend any form of sole custody of the children to the respondent, the situation now before me might have been much worse. K.D. would, no doubt, have used the “authority that accompanies sole custody” to shut the applicant out of his children’s lives with greater dispatch.

 

[90]  The respondent did not offer any expert evidence to contradict Dr. Fidler’s findings in 2000.

 

[91]  As a result, I accept the evidence of Dr. Fidler in relation to conclusions about the parties’ family by 2000. And, I accept her evidence about the concept and qualities of child alienation and its effect on families. [page430]

 

[92]  Pathological child alienation, then, can be summarized from the evidence as follows and as contained in Ex. 8B, p. 20 in the trial:

[QL:GRAPHIC NAME=”93OR3d409-1.jpg”/] [page434]

 

[93]  In the three categories contained in this list, there are stark similarities with the facts of this case. Those similarities have led me to the conclusion that K.D. has conducted a consistent and overwhelming campaign, for more than a decade, to alienate A.L.’s three children from him.

 

[94]  K.D. submits that because the applicant has not asked the court to order an updated assessment of Dr. Fidler’s report, an adverse inference should be drawn that any update would not support his contention that the children have been alienated from him. I do not accept this submission as there is more than enough evidence in this trial that what Dr. Fidler saw, in 2000, as potential alienation of all the children, starting with D., is what, indeed, has come to pass. Her report has set the clinical framework for my findings that follow.

 

[95]  Dr. Fidler testified that children are more susceptible to alienation in certain age ranges. She explained that from five to eight years of age, children can have shifting allegiances to parents. Once a child’s brain develops to a point where the child can hold both positive and negative information about a parent, though, children can become confused. They begin to question whether a parent is telling the truth about things in general or the other parent in particular. When the child reaches the ages of ten or 11 years old, it can become very difficult for them to hold the different views they may have come to about their parents and, as a result, may choose to side with one parent over the other in order to free themselves from emotional conflict and the stress it causes. This becomes extreme in alienated children of

12 years old and older. These children, Dr. Fidler testified, can internalize the effects of alienation to the point where even the alienating parent could not get the child to visit the alienated parent. The child creates its own reasons to dislike

or hate the alienated parent — ones which are not real.

 

[96]  There is a broad range of effects of this severe sort of alienation on a child. Some of them are low self-esteem to self-hatred, guilt, feelings of abandonment, feelings of being unloved and unworthy. Children may feel self-doubt and doubt about their ability to perceive reality. They may have simplistic or rigid information processing. They can have inflated self-esteem. They may have poor differentiation of self. They may be aggressive and have poor impulse control.

Where there are court orders and children become aware that the orders are not being obeyed by the alienating parent, these children can learn that it is acceptable not to obey court orders. Alienated children can lack compassion and remorse and can also develop an ability not to feel guilt. [page435]

 

[97]  Dr. Fidler testified that long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70 per cent of the individuals studied. Two-thirds of the same population became divorced themselves

— a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives and difficulties trusting other people. One-third were reported to have substance abuse problems. Fifty per cent of this group in this study became alienated from their own children.

 

[98]  Dr. Fidler also testified that the study in question found that the bulk of those involved had wished that “someone had called them on their strong wishes and statements not to see the other parent”, but that they could not do it themselves. They could not reverse their public stance against the alienated parent, but wished someone else would make the decision for them that they had to see that parent. This way, the child could “save face”.

 

[99]  These three children have been alienated from their father to differing extents. D. has not been in her father’s care since the spring of 2008 and has only attended access visits because she was sent to A.L.’s home to supervise J. and

K. as her mother would have done if she had been allowed to

attend the access. D. was sent to “stand up to” the applicant on behalf of herself and the other two children although there is no evidence in this trial that A.L.’s behaviour ever required “standing up to”. To that extent, the children’s alienation from their father is not a “realistic estrangement” as referred to in the expert evidence literature filed in this trial. Their estrangement, on the facts of this case, is neither reasonable nor warranted.

 

[100]  J. has not seen her father since August 2008, in spite of having reported positively to the Children’s Lawyer about her time with her father except for overnights.

 

[101]  K. has not spent time with her father since October 17, 2008, when she got out of her mother’s vehicle with the aid of a Children’s Aid Society worker in order to have an access visit with A.L.

 

[102]  Some of the significant evidence of alienation is as follows.

Moves

 

[103]  K.D. has continuously moved her and the children’s home further away from A.L.’s home over the past decade. She has offered no reasonable excuses for the many moves from her initial one out of his home in 1998 to the last move in 2007, which was further from him still. Her home is presently for sale. There is some evidence, in spite of the children’s apparently positive [page436] and grounded existence in their present location, that she intends to move further north, away from A.L.’s home and work location.

Office of the Children’s Lawyer

 

[104]  Dr. Fidler’s assessment was reported in 2000. The Office of the Children’s Lawyer was appointed in 2006. From 2000 to 2006, K.D. remained fixed in her belief that the children need not have a relationship with their father. In fact, she believed that it would be “harmful” to D. to re- establish a relationship with A.L. In her initial interview with Mr. Steven D’Souza of the OCL, the respondent openly

questioned the value of the children having a relationship with

the applicant and raised concerns that A.L. had sexually abused his children. She also told a caseworker involved with the case that she would not force the children to see their father if they did not want to.

 

[105]  K.D. complained to the Children’s Lawyer that food had been an issue when the children had previously been on visits with their father. K.D. would advise her children not to eat at their father’s home because she would cook for them once they returned home.

 

[106]  Once the Children’s Lawyer had finished its initial study of this case and took the position that the children should have a relationship with their father, K.D. was unable to consent to supervised access for two hours per week. The matter had to be returned to court by the applicant for that access to begin.

 

[107]  In spite of positive reports from the Children’s Lawyer and the access supervisors, Bartimeaus, that supervised access was going well and that the children were comfortable with their father, K.D. wanted access suspended in October 2007.

 

[108]  In February 2008, overnight access to A.L. began with the consent of J. and K. There was no end to the problems caused by it until it stopped as a result of K.D.’s inability to support the children’s relationship with their father.

Police involvement

 

[109]  When J. called K.D. from her father’s home during the March 7, 2008 visit there because she was unused to sleeping away from home, the respondent’s only response was to call the police. When police arrived, J. did not appear to them to be upset.

 

[110]  The police presence that night, however, upset J. further. She told the Children’s Lawyer that she did not want the police to be present at access visits. The Children’s Lawyer warned K.D. not to call police for the purpose of dealing with access. She ignored their warnings, however, and continued to use the police [page437] for her own ends — as witnesses, she attested, to defend her against any possible findings of contempt by this court. The respondent’s evidence, and whole defence to the contempt, is that she has “produced” the children, but it is the children who do not wish to see their father.

 

[111]  As of April 2008, J. had told Mr. D’Souza of the Children’s Lawyer that she did not want the police to be involved in the access visits and she wanted Mr. D’Souza to convey this wish to her parents. J. was, apparently, relieved when Mr. D’Souza agreed to talk to her parents about the issue. By July 2008, however, when spoken to by Ms. Claudia Ricci from the York Children’s Aid Society about the continued police involvement, J. stated that she didn’t mind the police involvement in their access because her mother would get into trouble with the judge if the access was not documented. J. did not feel she needed the police presence to protect her, but to protect her mother.

 

[112]  K. still reported to authorities, as of July 2008, that she felt nervous every time the police attended an access exchange or visit and she did not want them present.

 

[113]  The June 3, 2008 visit to the police station by the respondent with the girls is of concern. By all accounts, the respondent remained at the police station with the three children until 3:00 a.m. because she had taken the children with her from A.L.’s access weekend and was concerned that if she went home, the police would come to her home and take the children from her. This in spite of evidence from the police that the respondent was advised to go home because A.L. had consented to J. and K. leaving the Fun Fair they had attended with him to go home with their mother. K.D. saw the stay at the police station for her children as inconsequential compared to her own need to protect herself against any finding of contempt.

 

[114]  On June 27, 2008, the police were once again involved in an access exchange. In spite of telling police, who were

called there by the respondent, that they wished to go to their father’s home, K.D. refused to allow J. and K. access to A.L.

[115]  I heard no expert evidence about the effects the police involvement in this case might have on the children, but it is difficult to imagine that it did anything to lessen the tension the children felt existed between the parents. The polarization that these children felt constantly between their parents’ households could not have made access easier. I find K.D. responsible for the difficulties created by the constant police presence. Her activities in this regard are evidence of more than just not supporting a relationship between the children and A.L. It is more evidence of her alienating her children from their father. [page438]

Involvement in court proceedings

 

[116]  There is evidence that K.D.’s actions went well beyond just not supporting a relationship between the children and their father in her inappropriately involving the children in custody and access proceedings before this court. Those activities involve:

(1)taking the children to a Children’s Lawyer disclosure meeting;

(2)  taking the children to court on July 17, 2008;

(3)  Claudia Ricci’s evidence was that:

(a)  J. said that “Mom tells the children the details about Court”;

(b)  D. said that “Dad had put pictures of them in an affidavit and she had seen those affidavits because they were lying around the house”;

(c)  D. said that “Mom had called them down to ask about an email that was attached to Dad’s affidavit and questioned them about who wrote the email”.

(4)Fari Syed of the Children’s Aid Society testified that K. said “Mom tells her about courts and lawyers”;

(5)Mr. D’Souza testified that K.D. stated that she had D. assist her with an affidavit at Photoshop. K.D. testified that it was just to assist with the headings on the affidavit; and

(6)K.D. testified that she had found a motion record in D.’s closet. It was there because D. was curious.

 

[117]  The children’s exposure to this court battle has only inflamed the situation further and has pushed the children into choosing to side with their mother in the matter. That has alienated them further from their father. Children’s relationships

 

[118]  K.D. also appears unable to recognize the importance of relationships for her children outside her family. The evidence of Ms. D’Souza was that the children rarely had social interactions with non-paternal family members outside of school. K., for example, was not permitted, at the age of nine years old, to go to birthday parties without one of her sisters accompanying her. [page439]

 

[119]  A.L.’s family rarely saw the applicant’s three children. On one occasion when A.L.’s sister, C., visited the couple after K.’s birth, C. offered to take D. out and spend some time with her. K.D. refused because D. had sores in her mouth. When A.L. told K.D. that D. was fine, K.D. verbally abused C.L. Afterwards, she turned to her daughter D. and told her “they should keep their comments to themselves”. When C.L. was leaving, D. turned to her father and asked him “why did you let those people in?”

 

[120]  This kind of negativity was outlined in Dr. Fidler’s 2000 report and continues to the present, especially in D., who cannot find a positive thing to say about her father — for no apparent reason. K.D.’s Behaviour

 

[121]  In spite of warnings from Dr. Fidler in 2000 and the Children’s Lawyer in 2006 through 2008, K.D. has refused to accept professional opinion that her behaviour is negatively impacting her children. She has not claimed that she does not understand these warnings. She simply does not agree. As a result, she does not change her behaviour. K.D. has complained about the applicant sexually abusing J. in 1999 with Dr. Fidler, in 2006 with Mr. D’Souza and in 2008 with Ms. Ricci. She complained about inappropriate food served to the children by their father to Dr. Fidler, the Children’s Lawyer in 2006 and the Children’s Aid Society in 2008. K.D. complained about J.  having swollen joints between 2000 and 2002 and again in 2008. None of these complaints, although addressed by the various professionals at the time, have any validity to them.

 

[122]  The same concerns about K.D.’s behaviour reported by Dr. Fidler in 2000 are apparent today. Those behaviours have changed somewhat as the children have aged. K.D.’s behaviour more than suggests a long-waged campaign of alienation of the children from the applicant. The respondent is also unable to take responsibility for her behaviour and has shifted the responsibility of the children’s feelings about the applicant to the children in order to protect herself. She has gone so far as to suggest that the children are responsible for the contempt alleged in this trial.

 

[123]  K.D. is unable to accept criticism and cannot gain from comments of people who disagree with her. She complained to Dr. Fidler’s professional body about the content of her assessment. When that did not succeed, she complained further. None of her concerns were validated. In April 2007, when K.D. did not agree that the children should be excluded from disclosure meetings at the OCL, she refused to leave the Children’s Lawyer’s [page440] Office. She complained to both the legal director and the clinical coordinator there. When she attended the next meeting, in May 2007, she refused to acknowledge anyone present or speak at all, even when spoken to.

 

[124]  In April 2008, D. and K. disclosed to the Children’s Aid Society that the respondent was hitting them once per month to every two weeks. These assaults were disclosed around the same time the girls told authorities that they feared their father. There was no evidence to support any of the children’s fears of their father. In spite of being violently beaten as a child herself, by her parents, K.D. appeared to have little insight into the consequences of this behaviour, on her part, on the children. Credibility

 

[125]  K.D.’s credibility in this trial was completely lacking. She was evasive and dishonest. When K.D. questioned A.L. at the opening of the trial, she was self-represented. She had no trouble putting detailed questions to the applicant about matters occurring 15 years ago. The detail in her questions was remarkable. However, when she testified near the end of this trial about matters around the same time period and closer in time to the present, her testimony was filled with answers of “I don’t recall” and “I don’t remember”. I did not believe her. In fact, I took from K.D.’s responses that she has a disdain for this process and the court and she was unwilling to participate in her own cross-examination or in assisting the court to reach an appropriate decision in this case. There were many times in cross-examination as well where K.D. was found to be lacking in credibility due to prior inconsistent statements she has made. These instances damaged her credibility as well.

 

[126]  In contrast, A.L. was straightforward. The passage of time in this case has made remembering details from long ago difficult. However, the applicant gave his evidence sincerely and did his best to remember details about the past. I accept all of his evidence without hesitation.

 

[127]  The evidence of Dr. Fidler and all of the other child care professionals in this case, including that from the OCL, York CAS and the police, was essentially unchallenged. I accept that evidence without reservation in order to determine the proper outcome of this case. The parents’ plan

 

[128]  K.D. presented no real plan for re-establishing and maintaining a relationship between the children and A.L. [page441]

 

[129]  A.L. recognized that he would have to utilize significant therapeutic resources if a change in custody is ordered. He testified that he had been looking into the program offered by Dr. Rand and Dr. Warshak which assists in the transition of children between homes in parental alienation cases and he was willing to utilize this program. There is no evidence in this trial which suggests that this program is inappropriate or anything but what this family needs. And, as a result, I find that it should be used by the applicant to handle any transition for the children from their mother’s home to his home. If the children are placed in his care, A.L. will have some significant challenges with the children. The children in the past have pleaded to go home during access times and A.L. has not prevented them from returning to their mother. If the children are to go through an experience as significant as a change in custody, A.L. will need to be committed to following through with the order. He has testified that he understands how difficult this will be and is prepared to deal with the consequences that will likely come from a change in custody.

 

[130]  One issue that was raised at this trial is the applicant’s work schedule. A.L. indicated that he would take time off work to assist in the transition and then he would hire a nanny to assist with child care responsibilities. He also indicated that he would have support from his sister C.L. and her family to assist on the weekends he was on call at the hospital. C.L. confirmed that she would assist in this regard.

 

[131]  This plan is a substantial difference for the children. The children are used to having their mother as the primary caregiver and have not had many experiences with child care outside of family. A.L. testified that he was able to arrange his schedule around the children. I accept this based on his prior ability and commitment to exercise access over the years.

 

[132]  A.L.’s plan is to keep the children in their current school. With respect to access to the children’s mother, he is prepared to follow the recommendations of the therapists working with the family and would follow the advice of the therapists around access between the children and their mother. His plan is in the best interests of the children and he is the only party who can support a relationship between the children and both parents. Views and preferences of the children

 

[133]  The views and preferences of the children have changed over the course of the Children’s Lawyer’s involvement. D. and K.  were clear in their initial interviews in 2006 and early 2007 that they did not want any contact with their father. J. originally stated that she did not want any contact but was willing to [page442] consider the idea of supervised access

after participating in the observational visits with her father. After the supervised access began, J. and K. became more comfortable with the idea of spending time with their father. After a couple of months, the children reported positive experiences on access, and in early January 2008, both children were comfortable with expanding the access to full-day visits.

 

[134]  In February 2008, both K. and J. continued to talk positively about full-day access and both children were willing to try overnight access with their father. The children attended for one overnight visit with their father and on the second visit K.D. called the police to go to the home after J. called her in tears. After these visits, J. began expressing a fear of her father. She said that she was afraid of her father getting angry; however, she wasn’t able to describe any incidents, since access began, in which her father had been angry with them.

 

[135]  J. and K. continued to express a desire to see their father, but J.’s views about access were less positive. The children did spend extended time with their father over the summer, but J. reported that she was sick after access and K. had a bad stomach during the visit and was vomiting. D. attributed this to the food at A.L.’s home, but there was no evidence to confirm this to be so.

 

[136]  The current views and preference of the children are:

(1)J. does not want any overnight access with her father;

(2)K. states that she loves both of her parents and wants to spend a lot of time with both of them; and

(3)D. has remained consistent that she does not want any contact with her father. The Law

 

[137]  The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8) and (10) set out that the test for determining custody of children is the best interests of the child. This court is required to take into consideration the willingness of the person seeking custody to facilitate as much contact between the child and the other parent as is consistent with the best interest of the child.

 

[138]  K.D., on all the evidence before me, is incapable and unwilling to support the three children in a relationship with their father. She has demonstrated for the past 14 years that she will not act in the best interests of her children in this regard. She has assaulted two of the three children and she has further abused all three children by keeping them from their father physically and alienating them emotionally from him. [page443]

 

[139]  The applicant, on the other hand, has good parenting skills. Dr. Fidler’s 2000 assessment noted that A.L. was “patient, responsive and effective” with the children, who were then quite young. Dr. Fidler found no support for allegations by the respondent that A.L. was an unfit or inept parent. Later, between 2006 and 2008, the Office of the Children’s Lawyer found A.L. to be well prepared for access visits and “excellent” at interacting and engaging the children.

 

[140]  Bartimaeus performed the observations during supervised visits and reported consistently positive interactions between the children at the applicant. No concerns were raised by any of the supervisors regarding the applicant’s parenting of the children or the condition of his home.

 

[141]  No concerns were expressed about the conditions or cleanliness of the applicant’s home by professionals, police, child care workers or employees of the Children’s Lawyer.

 

[142]  The views and preferences of the children is a factor to be considered under the best interests of the child test. No objection was ever made by the parties regarding the necessity or reliability of any of the children’s out of court statements. I have proceeded, then, on the assumption that they are admissible for the truth of their content. On that basis, I am able to consider the views and preferences of the children in determining who should have custody.

 

[143]  While the case law generally supports placing a great deal of weight on the views and preferences of children over 12, there are clear exceptions. One is in a case such as this, where one parent has undermined the child’s relationship with the other parent (Pettenuzzo-Deschene v. Deschene, [2007] O.J. No. 3062, 40 R.F.L. (6th) 381 (S.C.J.); Tock v. Tock, [2006] O.J. No 5324, 154 A.C.W.S. (3d) 1125 (S.C.J.)). In Pettenuzzo- Deschene, Justice Whalen determined that if the court finds that there has been parental alienation, then the child’s views cannot be seen as their own.

 

[144]  In the case of Mitchell v. Mitchell, [2002] O.J. No. 2504, 30 R.F.L. (5th) 365 (S.C.J.), little weight was placed on the views and preferences of the children because of the influence of a parent. Similar findings were made in Bergen v. Bergen, [2008] A.J. No. 902, 2008 ABQB 237 about wishes expressed to one parent.

 

[145]  Dr. Fidler also testified that the views and preferences of an alienated child are not independent views and preferences.

 

[146]  I find that neither D. nor J., with the exception of K., who appears to have a balanced view towards her parents, has an independent view or preference regarding custody and access. K., being the third and youngest child, seems not yet to have [page444] succumbed to her mother’s views regarding her relationship with her father. She is also still of an age, at nine years old, where, as Dr. Fidler suggested, she has not chosen a side to alleviate confusion and stress created by the parents’ battle.

 

[147]  It is clear, on all the evidence before me, that D. and J. have not formed their views and preferences from their own experiences. J.’s views and preferences changed dramatically from wanting contact with her father to not wanting to visit overnight in a matter of one month — and for no apparent reason.

 

[148]  I find that they have formed their views and preferences solely from the unrelenting influences and behaviour of K.D. Neither of these children, as well as K., have ever disclosed a reason why they did not want access with A.L.

 

[149]  As a result, I give little to no weight to D. and J.’s views and preferences. I give some weight to K.’s views and preferences.

 

[150]  The Office of the Children’s Lawyer has taken a position different from that expressed by the children. This has been sanctioned where there is evidence that the child’s views and preferences were not independent (Boukema v. Boukema, [1997] O.J. No. 2903, 33 O.T.C. 190 (Gen. Div.); Reeves v. Reeves, [2001] O.J. No. 308, 102 A.C.W.S. (3d) 1116 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. A. (B.), [2005] O.J. No. 2844, 2005 ONCJ 220; Filaber v. Filaber, [2008] O.J. No. 4449 (S.C.J.)). I am also in agreement with the OCL position that the status quo in this matter cannot be sustained.

Conclusion

 

[151]  The three children of the marriage have been alienated from the applicant over a long period because K.D. is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse as described by Dr. Fidler. The views and preferences of the two older children are not their own. And for the children to have any further contact with the respondent, significant therapeutic intervention is necessary.

 

[152]  It is remarkable that A.L. has not given in to the respondent’s persistence in keeping his children from him over the last 14 years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from K.D.’s control. She has shown that she cannot be entrusted with it. [page445]

 

[153]  The best interests of these children require an order for A.L. to have sole custody of them. This court orders the following:

(1) The applicant, A.L., shall have sole custody of the children, D.K.V.D., born November 11, 1994; J.M.A.L., born August 19, 1997; and K.D.M.D.L., born September 16, 1999 (the “children”); and is further granted the authority to make all decisions regarding the children’s welfare without consultation.

(2)The respondent shall have no access to the children pending a review of this matter, save and except for the purpose of counselling as also referred to below at para. 6.

(3)Pursuant to s. 17(3) of the Divorce Act and s. 141 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the children shall be brought to this courthouse in Toronto on Friday, January 16, 2009 at 10:00 a.m. in courtroom 902 by the respondent, where the transfer of custody shall occur with the assistance, if need be, of the Sheriff and court officers. The respondent shall not be present or within the premises or vicinity of the premises during the transfer to the applicant.

(4)The applicant shall have the sole authority to pursue whatever remedy he believes is necessary to enable for the children a transition of least conflict in the actual transfer of physical custody from the respondent to the applicant.

(5)The applicant may, in his discretion, utilize the services of Dr. Randy Rand, including participation in the Family Workshop for Alienated Children program created by Dr. Randy Rand (“Family Workshop”). For these purposes, the applicant may transfer the children outside of Canada for treatment and may retain the services of Bill Lane, or any other transport agents, to assist in the transport of the children to the location at which the Family Workshop will be conducted. He is to advise the respondent of the dates the children will be attending the Family Workshop, but does not have to advise her of the location.

(6)The applicant, the children and the respondent shall participate in follow-up counselling, commencing no sooner than three months from the date of this order (i.e., and to occur after the Family Workshop component including participation by the respondent in the Family Workshop

program for “favoured” parents) with Dr. Yvonne Parnell or, if Dr. Parnell is unable or unwilling to provide counselling for any or all of [page446] the applicant, the respondent or the children, the parties shall agree on such other person(s) to provide counselling for each of them, and failing agreement, this court may appoint the person(s) upon special appointment.

(7)The applicant and the respondent shall ask Dr. Randy Rand and Dr. Yvonne Parnell, or such other person(s) as is engaged or appointed to conduct follow-up counselling, to provide this court with a written report concerning their intervention as described above with the costs of their intervention, and the reports shall be delivered to the parties, through their counsel, and this court on a date to be fixed by April 1, 2009.

(8)The respondent shall be responsible for the costs of all the aforesaid services.

(9)The respondent is to arrange delivery to the applicant’s residence the children’s clothing and all their personal belongings within ten days of this order. She is not to attend at his residence personally. She can make arrangements for delivery through counsel for the applicant.

(10)  The respondent shall send all of the children’s clothing and personal belongings to them at the applicant’s address within ten days of the order, at her expense.

(11)  Pursuant to s. 17(3) of the Divorce Act and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and subject to para. 2 herein, the respondent is not to harass, annoy or molest, or attend within 300 meters of, or have any contact with the applicant or the children. She is not to have any contact, direct or indirect, or cause any contact, direct or indirect, with the children or with the applicant pending review of this matter, as set out below, and this Order of restraint of contact by the respondent with the children applies to all places where the children attend, including, without limiting the generality of same, the applicant’s home, the children’s schools, the children’s church or place of extracurricular activities.

(12)  The applicant shall have possession and sole control of the children’s passports and birth certificates.

(13)  The applicant’s passport, previously deposited with the court, shall be released to the applicant forthwith. [page447]

(14)  There shall be no restrictions in travel for the applicant and the children to participate in the Family Workshop. The respondent’s consent to the children’s travel out of the country is hereby dispensed with.

(15)  The respondent shall co-operate with all aspects of the Family Workshop and sign releases and contractual agreements necessary to fully implement this undertaking.

(16)  The applicant shall be entitled to confiscate and prevent the children’s use of cellphones, pagers, blackberries and computers, even if such equipment is provided by the respondent.

(17)  Pursuant to s. 141 of the Courts of Justice Act, and s. 36(2) of the Children’s Law Reform Act, the Sheriff of this court’s jurisdiction, York Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and all enforcement officials to whose attention this order is brought, shall assist, as required, for enforcing the provisions of this order, and shall specifically take all such action as is required to locate, apprehend and deliver the children to the applicant, including the power of search and entry at any time.

(18)  The respondent’s consent regarding the approval of the draft order is dispensed with.

 

[154]  As indicated earlier in this judgment, my reasons regarding the allegations of contempt of court by the respondent shall follow these partial reasons.

 

Application granted.