



COURT OF APPEAL FOR ONTARIO

CITATION: Bors v. Bors, 2021 ONCA 513

DATE: 20210716

DOCKET: C67846

Feldman, van Rensburg and Sossin
    JJ.A.

BETWEEN

Ciprian Teodor Bors

Applicant (Respondent)

and

Ana Cristina Bors (Beleuta)

Respondent (Appellant)

Tiffani A. Frederick and Gloria E. Ichim,
    for the appellant

Brian Ludmer, for the respondent

James R.G. Cook and Jessica Schissler,
    for the appellants trial counsel

Heard: May 19, 2021 by video
    conference

On appeal from the order of Justice Francine
    Van Melle of the Superior Court of Justice, dated December 4, 2019, with
    reasons reported at 2019 ONSC 7029.

REASONS FOR DECISION

A.

Overview

[1]

The parties are former spouses and the parents of two children, a
    daughter, M, who is now 15 years old, and a son, C, who is 9.

[2]

This is an appeal of an order granting sole custody
[1]
of the children to the respondent father, and imposing other terms, after the
    trial judge concluded that the appellant mother had engaged in parental
    alienation. The order was made after an eight-day trial of a motion to change a
    final order.

[3]

The motion to change was prompted by the alleged failure of the mother
    to comply with the provisions of the final order respecting the fathers access
    to the children. By the time the trial took place there had been more than 200
    failed access transitions, the father had not had access to M for two years,
    and, with limited exceptions, he had not had C in his care since the end of the
    previous school year, in June 2019. Moreover, the parties had been involved in
    the litigation of the motion to change for several years, and there had been
    numerous court attendances and orders, most of which were to address ongoing
    and worsening problems with the fathers access.

[4]

The trial judge concluded that the evidence was overwhelming that the
    children were alienated from their father and that their mother was
    responsible. She held that the best interests of the children required the
    father to have custody of the children, with an initial period where the mother
    would have no contact with C and reduced contact with M. The order required the
    parties and the children to engage in reconciliation therapy with family
    therapist Lourdes Geraldo, and provided for reports to the court. The trial
    judge remained seized of the matter.
[2]

[5]

The mother asserts that the trial judge erred in finding that she had
    alienated the children from their father. She also contends that the order
    imposed by the trial judge was not in the childrens best interests, and that
    some other order short of changing custody and restricting her access to the
    children would have sufficed. Finally, she argues that she was deprived of a
    fair trial because she was ineffectively represented by her trial counsel and
    the trial judge demonstrated bias.

[6]

The father denies that there were any reversible errors, and he seeks to
    rely on fresh evidence consisting of his own lengthy affidavit, which includes,
    as an exhibit, a summary report dated January 12, 2021 from Ms. Geraldo.

[7]

For the reasons that follow, we dismiss the motion to introduce fresh
    evidence, except for the report of Ms. Geraldo, which is admitted, and we
    dismiss the appeal. As we explain, there was no reversible error in the trial
    judges conclusion that the mother engaged in parental alienation, or her
    conclusion that the best interests of the children required a change in custody
    and the other measures that were included in the order. Nor was the mother
    deprived of a fair trial.

B.

Brief Procedural History

[8]

The parties separated in 2012 after ten years of marriage. At the time,
    M was six years old and C was under a year. The father commenced proceedings in
    the Superior Court shortly after the parties separation.

[9]

A custody and access investigation pursuant to s. 112 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
was undertaken by
    the Office of the Childrens Lawyer (the OCL). In its 2013 report the OCL recommended
    custody of the children to the mother and access by the father every other
    weekend and one night a week.

[10]

Shortly
    before a trial on custody and access was to begin, the parties reached an
    agreement. Its terms were incorporated into the consent final order of Snowie
    J. dated May 11, 2015. In broad terms, that order provided for the mothers
    custody of the children, with the father having access on alternate weekends.

[11]

The
    father brought a number of motions to address problems with his access to the
    children, which resulted in a number of interim orders as well as the final
    order of André J. of February 23, 2017 increasing access time and providing for
    access transitions at the childrens school.
[3]

[12]

On
    March 23, 2017 the father commenced a motion to change proceeding, and further
    court attendances and temporary orders followed.

[13]

An
    updated OCL report was issued on May 4, 2018 (the 2018 OCL report). While the
    author of the report, Wendy MacKenzie, recommended that the mother continue to
    have custody of the children, with the father having access (including access
    to C on alternating weeks), she was concerned about the father losing his
    relationship with the children. She recommended that the mother consider
    counselling support to help her to encourage a positive and healthy
    relationship between the children and their father despite her feelings about
    him and, she cautioned that if this cannot be achieved, consideration should
    be given to a change in custody.

[14]

In
    June 2018, after the children were refusing to transition to their fathers care,
    he brought an interim motion for access. By that point the father had not had
    access to M since September 2017 and C was attending access visits reluctantly.
    Coroza J., as he then was, adjourned the motion to a long motion, he made an
    order for questioning of Ms. MacKenzie, and he ordered that the children attend
    separation counselling with a mutually agreed upon practitioner. Coroza J.
    heard the long motion on August 13, 2018. During the months that his decision
    was under reserve, M was still not seeing her father and Cs visits were
    sporadic. On January 31, 2019, Coroza J. made an order increasing the fathers
    parenting time, and ordered the motion to change to proceed to trial.

[15]

At
    a further attendance on May 31, 2019, seeking compliance with the Coroza J.
    orders, the trial of the motion to change was expedited. Mossip J. cautioned
    the mother that continuing her behaviour could lead to a reversal in custody.

[16]

The
    trial took place on eight days in October and November 2019. By that time, M
    was still refusing to transition to her fathers care and C, who, with limited
    exceptions, had not been in his fathers care since the end of the previous
    school year, was missing a great deal of school, or leaving school early.

[17]

On
    November 18, 2019, the trial judge heard closing submissions. The mother,
    without explanation, was not present in court that day, and the trial judge was
    advised that C had left school early. The trial judge provided an oral
    decision, ruling that the mother had alienated the children from their father.
    She ordered that the best interests of the children required the father to have
    custody, and for the mothers access to be temporarily restricted. She ordered
    C to move immediately to the fathers full-time care and M to live with the father
    from after school until 8:00 pm, and from 9:00 a.m. to 8:00 p.m. on days M
    was not in school. On December 4, 2019 the trial judge released written reasons
    for judgment that set out the terms of her final order.

C.

Standard of Review

[18]

The
    determination of custody and access (now parenting orders) involves issues of
    mixed fact and law. As such, intervention on appeal is warranted only where
    there is a material error, a serious misapprehension of the evidence, or an
    error of law. As the Supreme Court has stated, [c]ustody and access decisions
    are inherently exercises in discretion. Case by case consideration of the
    unique circumstances of each child is the hallmark of the process:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 13.

[19]

As
    this court has reiterated many times, an appeal court must not retry parenting cases,
    but instead approach the appeal with considerable respect for the task facing
    a trial judge in difficult family law cases, especially those involving custody
    and access issues:
C.S. v. M.S.
, 2010 ONCA
    196, 262 O.A.C. 225, at para. 4.

[20]

In
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th)
    1, which was the appeal of an order reversing custody after a finding of
    parental alienation, Pardu J.A. articulated the standard of review. She stated,
    at para. 74:

Each case must be determined on its own specific facts. The
    trial judge hears from all the witnesses and as such, is in the best position
    to assess the childs best interests. If there is no
error
in law, no palpable and overriding error of fact, and no misapprehension of
    evidence, appeal courts should not interfere.

D.

Issues on Appeal

[21]

The
    mother raises a number of issues on appeal. In essence, she makes three
    arguments:

1.

The trial judge made a palpable and overriding error when she concluded
    that the childrens unwillingness to have access with their father resulted
    from parental alienation, and not some other reason, and when she ignored
    evidence of domestic abuse;

2.

The trial judge erred in making the order she did, changing custody and
    restricting the childrens access to their mother, (i) when the father had only
    asked for joint custody; and (ii) when a less restrictive order could have been
    made to enforce the fathers right of access; and

3.

She was deprived of a fair trial by reason of (i) the ineffective
    assistance of her trial counsel; and (ii) bias on the part of the trial judge.

[22]

We
    consider each issue in turn.


Issue One: Did the Trial Judge Err in Her Conclusions about
    Parental Alienation?

[23]

The
    mother contends that the trial judges conclusion that she had engaged in
    parental alienation was speculative, and based only on the childrens behaviour
    in refusing to transition into their fathers care. As such, she argues that
    the trial judge made a palpable and overriding error in concluding that there
    was parental alienation.

[24]

The
    mother asserts (as she did at first instance) that it was sufficient for her to
    bring the children to the access transfer point (typically the police station),
    and that she was not responsible if the children refused to transition to their
    fathers care. She also submits that her behaviour should be understood in the
    context of the domestic abuse she had suffered, which she says the trial judge
    ignored.

Discussion

[25]

It
    was not contested at trial that the children had become alienated from their
    father. Indeed, both parties took the position that reunification or
    reconciliation therapy was required to attempt to restore the relationship. The
    issue before the court was why the alienation had occurred, which would then
    inform the decision about the appropriate remedy.

[26]

The
    trial judge provided clear and detailed reasons for her conclusion that the mother
    had engaged in parental alienation. The finding of parental alienation was not
    based on speculation; rather it was firmly based on the evidence before the
    court. Indeed, the trial judge reasonably concluded from the evidence that the
    children were suffering emotional harm caused by their mothers behaviour.

[27]

The
    trial judge heard evidence from the parties and other witnesses. Several
    professionals who had been involved with the family testified, including Ms. MacKenzie
    (the author of the 2018 OCL report) and caseworkers from the Peel Childrens
    Aid Society (the CAS). It is unnecessary to detail here the evidence of the
    witnesses; it is sufficient to observe that the trial judge assessed the
    evidence and made findings of fact. She identified a long list of the mothers
    actions that were consistent with alienation. The trial judge also referred to
    the continuing failure by the mother to abide by court orders.

[28]

It
    was not sufficient then, nor is it now, for the mother to assert that she was
    only required to bring the children to the access transfer, and that she was
    not responsible for their refusal to transition to their fathers care. Once a
    court has determined that access is in the childs best interests, a parent
    cannot leave the decision to comply with the access order up to the child. Ontario
    courts have consistently held that a parent has some positive obligation to
    ensure that a child who allegedly resists contact with the access parent complies
    with the access order:
Godard v. Godard
, 2015
    ONCA 568 at para. 28.

[29]

The
    mother had been advised repeatedly to encourage and not to undermine the
    childrens relationship with their father, and that alienation could be highly
    damaging to the children. Yet the mother persisted in her conduct, and the
    relationship between the children and their father deteriorated.

[30]

Nor
    do we accept the contention that the mothers conduct  in failing to support
    and assist in the fathers access to the children  can be explained by the
    fact that she was a victim of domestic abuse. In support of this allegation her
    counsel on appeal relied on the fact that in 2014 the father had pleaded guilty
    to mischief and received a term of probation after he placed a GPS tracker in the
    mothers vehicle.
[4]

[31]

The
    GPS incident was not referred to in the trial judges reasons, for good reason.
    In 2015 the mother had consented to a final order that provided for the fathers
    access to the children on alternate weekends. The focus of the trial was on the
    parenting of the children since that time, and their alienation from their
    father. There was nothing to suggest that the mothers resistance to assisting
    in the childrens transition to their fathers care resulted from any
    consequences of the GPS incident or abuse that she had suffered in her
    relationship with the father. Rather, she suggested that the fathers
    mistreatment of the children justified their reluctance to transition into his
    care. She made numerous false allegations to the CAS and the OCL that the father
    was abusing the children. She had persisted in making complaints, including at
    trial, even after they were investigated and not substantiated. The OCL and the
    CAS, who had extensive dealings with the family over a number of years, identified
    no concerns with the fathers fitness as a parent, and the testimony of their
    representatives emphasized their concern with the mothers alienating
    behaviours.

[32]

The
    mothers attitude toward the father was reflected in the inflammatory and
    untrue comments she made to others, including to witnesses at the trial. Although
    the mother denied speaking ill of the father before the children, the trial
    judge noted in her oral reasons that [the mothers] whole demeanour and
    attitude telegraphs her intense dislike for him. There is no way that her
    attitude is not transmitted to the children. The mothers alienating conduct,
    as the trial judge observed, resulted from her lack of insight into the effect
    of her behaviour on the children, as well as her total disregard for previous
    court orders.

[33]

There
    is no reason to interfere with the trial judges conclusions about parental
    alienation. They are sound, and fully supported by the evidence.

Issue Two: Did the Trial Judge Err in the Terms of the Order
    that She Imposed?

[34]

The
    mother makes two arguments on this issue.

[35]

First,
    she submits that the trial judge erred in law when she ordered a custody
    reversal in light of the parties positions at trial, and in the absence of an
    updated OCL report.

[36]

Second,
    the mother asserts that the trial judge erred in making an order restricting
    her access to the children when other alternatives were available, such as an
    order for access with police enforcement, an order finding her in contempt of
    earlier orders or, if custody were changed, an order for supervised access. The
    mother further argues that a different order should have been made because the trial
    judges order requires her to gain a level of insight that is beyond her reach,
    and prevents her from demonstrating positive behavioural changes in order to
    regain access to the children.
[5]

Discussion

[37]

The
    mother is correct that the fathers counsel indicated at the outset of trial that
    the preference was for an order for equal parenting with the children residing
    with each parent on alternating weeks. He expressed concern about the mothers
    compliance with such an order, and he advised that, depending on the evidence, the
    father might be seeking custody with a period restricting the mothers access
    to the children. Indeed, by the end of the trial it was apparent that an order
    for equal parenting would not be sufficient to address the ongoing parental
    alienation, particularly with the negative views the mother continued to
    express about the father in her evidence at trial, and her history of non‑compliance
    with court orders. The fact that the father asked for an order for equal
    parenting as one alternative did not prevent the trial judge from making the
    order she did, in the circumstances of this case. It was apparent even before
    the trial commenced that an order reversing custody might well be required. As
    in
A.M.
, the mothers conduct and its effect
    on the [children] was front and centre in the fathers pleadings: at para. 29.

[38]

There
    was no requirement for an updated OCL report. The OCL had provided a report in
    2013, and the 2018 OCL report was prepared for the motion to change proceeding.
    The author of that report, Ms. MacKenzie, had attended for questioning in 2018,
    and she was a witness at trial where she was examined by the parties. She spoke
    to what she had observed and determined at the time of her report  including the
    parenting abilities of both parties and the difficulties experienced with
    access transitions  and she confirmed her opinion that a custody reversal should
    be considered if the mother continued to not encourage the childrens
    relationship with their father. There is no indication that anyone requested an
    updated OCL report before the expedited trial took place or that further delay
    was justified in the circumstances.

[39]

As
    for the appropriateness and necessity of the order made by the trial judge, this
    is a unique case. Attempts to rectify the problems with access through repeated
    court attendances and interim orders had not succeeded. Indeed, the situation
    had worsened to the point that C, who was only transitioning to his fathers
    care after school, was frequently missing school or leaving early in order to
    avoid the transfer to his fathers care. Other available measures had proved
    inadequate or ineffective.

[40]

Although
    the mother had asked for an order for reunification therapy at trial, she had
    not complied with earlier directions respecting therapy and counselling. Nor
    had she followed the recommendation of the OCL to pursue individual therapy so
    that, despite her own feelings about the childrens father, she could still encourage
    a relationship between him and the children.

[41]

In
    the circumstances, including the history of the mothers failure to comply with
    court orders, it was reasonable for the trial judge to conclude that the family
    reconciliation therapy that the parties agreed was required was best supported
    by a reversal of custody and restriction on the mothers access to the children
    for a period of time. As this court recently observed, [w]here a reversal of
    decision-making and primary residence has been ordered, courts may order that
    the alienating parent have no contact with the child for a minimum period:
M.P.M. v. A.L.M.
, 2021 ONCA 465, at para. 37.

[42]

Finally,
    we do not agree with the mother that it is impossible for her to comply with
    the trial judges order. The mothers alienating behaviour is informed by her
    beliefs and attitudes. The order requires the mother to engage in individual
    therapy to assist her to recognize the need to support the childrens
    relationship with their father  which is in their best interests. The mother is
    not expected to change her attitude overnight; she is however expected to
    comply with the order by engaging in counselling with a view to helping her to
    develop behaviours that facilitate, and do not impede, the childrens relationship
    with their father, irrespective of her own feelings about him.

[43]

For
    these reasons we do not give effect to this ground of appeal.

Issue Three: Did the Mother Receive a Fair Trial?

[44]

The
    mother asserts that she did not receive a fair trial because (1) the case was
    not presented effectively by her trial counsel; and (2) the trial judge did not
    demonstrate impartiality.

(1)

The Claim of Ineffective Assistance of Counsel

[45]

The
    claim of ineffective assistance of counsel was raised in the notice of appeal
    and the mothers factum. The notice of appeal states as a ground of appeal that
    the appellants counsel was incompetent, negligent or ineffective. Her factum
    asserts that the mother was deprived of meaningful legal representation, that
    her trial counsel aligned himself entirely with the position of the father,
    that he refused to follow her instructions and declined to lead relevant
    evidence. She asserts that her trial counsel acted outside his mandate and
    instructions.

[46]

At
    the outset of the hearing of the appeal the panel raised the concern that the mother
    had not followed this courts protocol for appeals involving claims of this
    nature. The fathers counsel and counsel for the mothers trial counsel argued
    that the ineffective assistance ground of appeal ought not to be considered
    because of the failure to follow the protocol. The mothers appellate counsel
    sought an adjournment for the purpose of taking the steps required under the
    protocol.

[47]

The
    mothers trial counsel was represented at the hearing of the appeal and had
    filed a factum. Counsel for the mother indicated that she would be relying on
    the existing record, and that, even if an adjournment were provided, she did
    not intend to put forward evidence on this issue. In the exceptional
    circumstances of this case, the panel was satisfied that the record was
    sufficient to permit this ground of appeal to be considered based on the
    materials filed, and, in the interest of avoiding further delay, it would be
    appropriate to do so notwithstanding the failure to comply with the protocol.

[48]

In
    order to establish ineffective assistance of counsel as a ground of appeal, an
    appellant must satisfy the court on a balance of probabilities that trial
    counsels conduct fell below the standard of reasonable professional assistance
    and that the ineffective representation resulted in a miscarriage of justice. A
    miscarriage of justice occurs when the ineffective representation undermines
    the appearance of the fairness of the trial, or the reliability of the result 
    in the sense that there is a reasonable probability that the result would have
    been different had there been effective representation:
R.
    v. Archer
(2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.

[49]

We
    do not give effect to this ground of appeal. The mother did not file any
    affidavit evidence to support the bald allegations in her factum of ineffective
    assistance of counsel. She has not provided any evidence in support of her
    allegations that trial counsel failed to follow her instructions, that he failed
    to lead relevant evidence that would have changed the result, or that he acted
    contrary to her interests.

[50]

Nor
    do we agree that counsels ineffectiveness is obvious on the record. The mother
    contends that her position at trial was that she was a victim of domestic abuse,
    and that her counsel failed to advance this position. In fact, her evidence that
    there was abuse, including the GPS tracker incident, was squarely before the
    court in her trial affidavit. The issues at trial however, were whether the
    children were refusing to transition to their fathers care because of parental
    alienation or for some other reason, and the appropriate order to respond to
    those circumstances. The mothers counsel brought out the mothers evidence
    denying that she was alienating the children, her explanations for their
    behaviour, and her assertion that she was doing all that was required in
    bringing them to the access transfer. Her counsel cross-examined the various
    witnesses. In the end, the evidence of alienation was overwhelming. Even then,
    the mothers trial counsel advocated for her position that reunification
    therapy (to which she had agreed) could occur without the need for a custody
    reversal and restriction on her access. There is nothing in the transcript to
    suggest that the mothers counsel was ineffective or incompetent.

[51]

The
    claim of ineffective assistance of counsel is not made out. We dismiss this
    ground of appeal.

(2)

Did the Trial Judge Demonstrate Bias?

[52]

The
    mother asserts that the trial judge showed a lack of judicial impartiality,
    and that as a result she had an unfair trial. She focuses on the trial judges
    interventions or comments over the course of the trial, which she claims were
    excessive and one-sided. This ground of appeal can be dispensed with briefly.

[53]

The threshold for showing bias is high and requires cogent
    evidence. The standard is objective. The test is whether an informed person,
    viewing the matter realistically, and having thought the matter through, would
    conclude that the trial judge would not decide the matter fairly:
McGregor v. Pitawanakwat
, 2017 ONCA 77, at para. 19,
citing
Committee for
    Justice & Liberty v. Canada (National Energy Board)
, [1978] 1 S.C.R. 369, at p. 394. See also
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26.

[54]

We
    have reviewed the passages the mother relies on as evidence of bias. Contrary
    to her submissions, none of the interjections and comments by the trial judge, viewed
    individually or collectively, would suggest to a reasonable person that the
    trial judge was biased, or that she had prejudged the issue of parental
    alienation. Her interjections occurred throughout the case, and for the most
    part were directed to keeping the evidence and submissions focused on the
    issues at hand, and preventing the witnesses who testified from straying beyond
    their observations and expertise. As the trial progressed, the evidence
    demonstrated a clear case of parental alienation. The fathers evidence went in
    first, and included the testimony of a number of professionals who had worked
    with the family. During closing arguments the trial judge observed that she was
    struck by how unusual it was for so many professionals involved with the family
    to uniformly conclude that a parents behaviour was the cause of alienation and
    the childrens risk of harm. She also noted that the mother had readily
    admitted to many of the allegations of alienating behaviour. These were fair
    and appropriate comments on the evidence before the court, and not an
    indication that the trial judge had pre-judged the issues.

[55]

Accordingly,
    we see no merit to this ground of appeal.


Fresh Evidence

[56]

The
    father sought to file as fresh evidence on the appeal his own lengthy
    affidavit, with various exhibits.

[57]

The
    test for admitting fresh evidence on appeal requires the moving party to
    satisfy four criteria: (i) the evidence could not have been adduced at trial;
    (ii) the evidence must be relevant in that it bears on a decisive or
    potentially decisive issue; (iii) the evidence must be reasonably capable of
    belief; and (iv) the evidence must be such that, if believed, it could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result:
R. v. Palmer
, [1980]
    1 S.C.R. 759, at p. 775.

[58]

The
Palmer

criteria are more
    flexible where an appeal involves the best interests of children, where it is
    important to have the most current information possible [g]iven the inevitable
    fluidity in a childs development:
Goldman v. Kudelya
,
2017
    ONCA 300, at para. 25.

[59]

Notwithstanding
    the more flexible approach for receiving fresh evidence where an appeal
    addresses the best interests of children, the fresh evidence in the present
    case does not meet the test for admission. The proposed fresh evidence is
    essentially a whole new record, full of lengthy, contextualized narrative, that
    expands on issues explored at the trial, and provides the fathers account of
    what has transpired since the order under appeal was made, including his
    assertions that the mother has failed to comply with the order.

[60]

In
Fiorito v. Wiggins
, 2015 ONCA 729, 69 R.F.L.
    (7th) 5, this court admitted as fresh evidence two reports prepared by Dr.
    Ricciardi, the therapist who saw the parents and children on a weekly basis
    pursuant to the trial judges order which granted custody of the children to
    their father and limited the mothers access to the children to the weekly
    therapy sessions. Similarly, we are prepared to receive the report of Ms.
    Geraldo, which summarizes the therapeutic work carried out with the parties and
    children pursuant to the trial judges order in the instant case. That report
    indicates that as a result of the increased time with their father, the
    children have gone on to settle into their fathers care. While the report is
    not essential to our decision to dismiss the appeal, it provides some comfort
    that the measures that were ordered are underway and have gone a considerable
    distance to restoring the childrens relationship with their father.

[61]

Ms.
    Geraldos report also states that there have been problems with the mothers
    engagement in the reconciliation therapy, in part due to her pursuit of this
    appeal. Now that this court has determined the appeal, affirming the decision
    of the trial judge, it is expected that she will comply with its terms,
    including the requirements for individual therapy and participation in the reconciliation
    therapy led by Ms. Geraldo.

[62]

We
    dismiss the motion to admit fresh evidence, except for the report of Ms. Geraldo.

E.

Disposition

[63]

For
    these reasons the appeal is dismissed. The father and the mothers trial
    counsel are entitled to their partial indemnity costs from the mother. If the
    parties are unable to agree on the amounts, we will receive brief written
    submissions. The father and the mothers trial counsel are to provide their
    submissions within 15 days of these reasons, with responding submissions to be
    provided by the father within ten days thereafter, with no right of reply.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

L.
    Sossin J.A.





[1]

Pursuant
    to amendments to the
Divorce
    Act
, R.S.C. 1985, c. 3, (the Act) which came into effect on
    March 1, 2021, custody and access terminology has now been replaced by
    terms such as decision-making responsibility, parenting time and contact.
    Section 35.4 of the Act deems a person who had custody of a child by virtue of
    a custody order to have parenting time and decision-making responsibility and a
    spouse or former spouse who had access by virtue of a custody order to be a person
    to whom parenting time has been allocated. However, since counsel argued the
    appeal using the terminology under the original orders, our reasons will also
    employ the historical language.



[2]

This
    is a broad outline only of the order, which contains detailed terms respecting
    the residence of the children, the required therapy, and the reporting to and
    supervision and review by the trial judge.



[3]

This
    order was amended on April 13, 2017, to provide for access transitions at a Tim
    Hortons, using the services of the Brayden Access Centre (Brayden), for
    times where the children were not in school. In June 2017, and after Brayden withdrew,
    a temporary order provided for access to be transferred at a police station.



[4]

The
    father explained, in his affidavit evidence for trial, dated October 11, 2019,
    that he had done so when he feared that the mother would leave the country with
    the children, and take them back to Romania.



[5]

The
    order provides that the trial judge will remain seized of the case, to review
    the progress of the childrens relationship with their father and to gradually
    increase their mothers access. The order requires the mother to engage
in individual therapy to assist her to recognize the need to support
    the childrens relationship with their father, and it provides that the co
urt
    shall not undertake a review of the custody and access provisions of the order
    until the mother engages and meaningfully participates in therapy to gain
    insight into her alienating behaviour and meaningfully works towards supporting
    reconciliation between [the father] and the children.


