



COURT OF APPEAL FOR ONTARIO

CITATION: M.P.M. v. A.L.M., 2021 ONCA 465

DATE: 20210628

DOCKET: C69087

Doherty, Trotter
    and Thorburn JJ.
A.

BETWEEN

M.P.M.

Applicant
    (Appellant)

and

A.L.M.

Respondent
    (Respondent)

Erin L. Reid and Jordan D. McKie, for the appellant

A.L.M., acting in person

Heard: June 2, 2021 by video conference

On appeal from the order of Justice A.
    Duncan Grace of the Superior Court of Justice, dated January 8, 2021, with
    reasons reported at 2021 ONSC 177.

Thorburn J.A.:



OVERVIEW

[1]

The parties to this appeal are parents of two
    children: D.M., born in October 2008, and S.M., born in March 2011. This is an
    appeal of the January 2021 parenting order in respect of D.M. and S.M.
[1]

[2]

In April 2020, after an eleven-day trial, the
    trial judge concluded that the respondent mother, A.L.M, had alienated D.M. and
    S.M. from the appellant father, M.P.M. The trial judge ordered that the parties
    would continue to have joint custody, the children would continue to reside
    primarily with the mother, while the father would have rights of access on the
    terms set out in his order. All parties were ordered to undergo assessment and
    therapy to address, among other things, the childrens alienation from their
    father. In his reasons, the trial judge warned that he might reverse custody if
    the mother did not change her behaviour to encourage the childrens
    relationship with their father.

[3]

In January 2021, upon receipt of further
    evidence, which included a report prepared by the psychologist Dr. Dilys Haner
    pursuant to s. 30 of the
Childrens Law Reform Act
(the Haner
    Report), the trial judge found that no progress had been made in respect of
    the counselling and therapy he had ordered.

[4]

However, citing concerns around the imminent
    arrival of the fathers newborn child with his new spouse (which D.M. and S.M.
    were not aware of), the effect of the COVID-19 pandemic, and the importance of
    the immediate mental health of the children, he ordered that the parties
    continue to share custody, the children continue to reside primarily with the
    mother with access and progress reports to the father, and all parties attend
    therapy and counselling as set out in the order. He also ordered that, [i]f
    she agrees to do so, Dr. Haner shall act as case manager and shall oversee the
    counselling/therapy referred to  with a view to achieving the ultimate
    objective of establishing a positive relationship between the children and both
    of their parents. The reviewing judge decided that I am no longer seized of
    this matter and there would, therefore, be no further judicial oversight.

[5]

The father seeks to vary the reviewing judges order
    such that:

a)

the father will have sole decision-making
    responsibility for the children;

b)

the children will reside exclusively with him;
    and

c)

the children shall not have contact with the
    mother for several months and in any event, not until she has engaged and meaningfully
    participated in therapy to gain insight into her alienating conduct.

[6]

In addressing the issues on appeal, I will
    outline the proposed fresh evidence introduced by the father, review the two decisions
    of the judge below, briefly set out the law on child alienation and the role of
    this court, and provide my reasons for dismissing this appeal.

THE FRESH EVIDENCE

[7]

The fresh evidence the father seeks to adduce on
    this appeal is a four‑paragraph affidavit of Dr. Haner, which attaches her
    letter to the fathers counsel. The letter, dated January 18, 2021, states
    that:

Case
management
without judicial oversight is almost certain to backfire. I must
    consider the following potential negative consequences:

·

[The mother] will continue to negatively
    influence the childrens mental health intervention with a qualified child
    therapist/counsellor who is also sufficiently familiar with high conflict
    family dynamics to guard against her directing the treatment according to her
    own agenda, which is not aligned with the courts.

·

The children will continue to be exposed to
    ongoing drama and conflict due to [the mother]s inability to have them attend
    appropriate mental health treatment (i.e., with a qualified childrens mental
    health treatment provider also sufficiently trained and experienced with
    high-conflict separation and divorce).

·

The familys financial resources will be
    severely depleted without the hoped-for progress.

·

The treatment providers (including myself) will,
    therefore, be ineffectual yet committed to continue to attempt the work. This
    situation will surely lead to burnout for all involved.

·

The children are, therefore, at-risk of becoming
    further entrenched in their beliefs that their father is unsafe, and their
    mental health will continue to deteriorate.

I would be willing to reconsider and would
    likely accept case management responsibility for the family if there was a
    commitment from the Court to provide continuity in oversight such as I would be
    agreeing to. Without the consistent oversight of a Judge sufficiently familiar
    with the details and progress of this case, to whom I can report, and on whom
    we all can rely to enforce consequences for non-compliance, I am of the opinion
    that no further progress will be made by [the mother], and therefore, also the
    children.



To summarize, I cannot ethically accept this
    referral at this time. Should the Court provide further direction/request of me
    or provide a guarantee of consistent judicial oversight for this family, I will
    certainly reconsider. It is my sincere hope to support the true progress of
    this family, and its members, toward genuine healing.

[8]

The letter was written ten days after the judge
    rendered his Reasons on Review and in response to his order that Dr. Haner act
    as case manager for counselling and therapy if she agrees to do so.

[9]

In order for the court to discharge its
    obligation to consider the best interests of the children, for this purpose the
    rules governing the admission of fresh evidence in family law appeals are
    relaxed:
Salehi v. Tawoosi
, 2016 ONCA 986, 92 R.F.L. (7th) 261, at
    para. 21. A more flexible approach to the
Palmer

test
for the
    admission of fresh evidence is appropriate:
Decaen v. Decaen
,
2013 ONCA 218
,

303 O.A.C. 261,
    at para.
13
;
Catholic
    Childrens Aid Society of Metropolitan Toronto v. M. (C.)
, [1994] 2 S.C.R.
    165
. As this court observed in
H.E. v. M.M.
,
    2015 ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal refused,
    [2016] S.C.C.A. No. 63:

Flexibility in such matters is consistent with
    the need for up-to-date information on children, whose fate often hinges on a
    determination by judges, and is thus in line with the overarching criterion for
    admission, namely, the interests of justice.

The more flexible approach to fresh evidence in
    matters relating to child welfare does not, however, render all proffered fresh
    evidence admissible. The factors enunciated
in the
Palmer
test remain relevant. In particular, to be admissible, the fresh
    evidence must be credible and reasonably capable of belief.

[10]

Dr. Haners evidence could not have been
    provided prior to receipt of the reasons for the review order, it is authored
    by the expert sought to manage the counselling and therapy for this family, and
    it is clearly credible and relevant to the welfare of these children which is the
    central issue on this appeal. I would therefore admit the fresh evidence.

THE PROCEEDINGS BELOW

[11]

The parties ended their eleven-year relationship
    in December 2017. There were then some unsuccessful attempts at reconciliation.
    The father moved out of the family home and the mother remained with D.M. and
    S.M. These children have remained with their mother since the date of
    separation.

[12]

Shortly after the marriage ended, the mother had
    an emotional breakdown. She has also dealt with her mothers cancer diagnosis
    and her own reintegration into the workforce.

[13]

The father has a new relationship and a new
    child born of that relationship. D.M. and S.M. are not aware that they have a
    half-sibling.

[14]

Since the date of separation, notwithstanding concerted
    efforts by the father and the assistance offered by professionals, D.M. and
    S.M. have not formed a meaningful relationship with their father.

(1)

The Trial Judges Reasons in April 2020

[15]

The father brought an application before the
    Superior Court in London for,
inter alia
, custody and access (now
    parenting orders pursuant to the deeming provisions at s.76(2) and 76(3) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12, 
CLRA
). Testimony
    was heard over eleven days beginning on October 2, 2019. The trial judge
    released his decision on April 7, 2020: see 2020 ONSC 1862.

[16]

The trial judge concluded that the mother had alienated
    the children from the father and that her conduct was contrary to the
    children's best interests. The application judge held that he would have
    ordered a custody reversal and removal of the children from the mothers care with
    no contact between the mother and her children, including no communication between
    them for several months to provide time for the alienation and ill-feeling
    toward the father to be reversed. The trial judge would have made this order
    notwithstanding that it would, in the short term, have been devastating for the
    children.

[17]

However, he did not make that order.

[18]

Instead, he held that, world changing external
    circumstances have intervened. For now, that means a reassessment of the disposition
    I would have made. He ordered that, [i]n all of the circumstances and subject
    to the review of the parenting orders to be scheduled sometime after September
    2020, among other things:

a)

The parties shall share custody [decision-making] of D.M. and S.M.;

b)

The children will continue to reside primarily with [the mother,
    with regular contact with the father as further set out in the order];



h)

For the purposes of the review [of the  parenting orders] and
    subject to her written consent, Dr. Dilys Haner of the London Clinic is
    appointed to assess and report to the court on the needs of the children and
    the ability and willingness of the parties to satisfy them....

i)

Each of the parties and each child is ordered to attend for and
    fully cooperate in an assessment by Dr. Haner....

j)

The fees and expenses of Dr. Haner and any retainer required thereby
    shall be shared equally by the parties and paid forthwith upon request by Dr. Haner.

(2)

The Trial Judges Reasons on Review in January
    2021

[19]

The trial judge remained seized of this matter
    pending completion of the review. Prior to the review hearing, Dr. Haner filed
    a comprehensive 63-page report. Testimony on the review hearing was heard over
    four days in the Fall of 2020.

[20]

The trial judge released his Reasons on Review
    on January 8, 2021. In his Reasons, he provided a detailed review of the Haner report
    and Dr. Haners testimony.

[21]

Dr. Haner noted that following an access visit
    by the father, one child noted that the other had tried to commit suicide twice
    and said she wanted to do the same. Dr. Haner also witnessed two virtual visits
    with the father where the children refused to sit in front of the camera and
    even after the mother instructed them to focus on not yelling, one child said
    it was the fathers fault that they wanted to kill themselves. That child complained
    of not being able to eat, vomiting and other somatic anxiety symptoms. Dr.
    Haner noted that the children had still not received any mental health
    assistance.

[22]

As noted by the application judge in his Reasons
    on Review, at paras. 44-48:

Dr. Haner told the court that A.M. had started
    to realize her conduct had, unintentionally, impacted the children and
    contributed to a material way to their negative attitude toward their father. However,
    she noted the respondent tends to interpret things negatively, even when most
    people would have reacted positively. The assessor thought that attribute,
    which she referred to as cognitive distortion, could detrimentally affect the
    childrens perceptions of events.

When cross-examined, Dr. Haner offered a frank
    assessment of A.M. The respondent was told that she found it difficult to
    self-regulate and that therapeutic support was needed to assist her in being
    more mindful of what she needed to do.

While of the view that both parents
    desperately want to figure out how to co-parent effectively, that was simply
    not possible because:

Each parent vehemently denies the others
    experiences and reality. When this happens, there is no basis for trust,
    essentially no basis for a remotely healthy relationship.

Dr. Haner had many positive things to say
    about M.M. He well received, adopted and displayed her recommendations.
    However, the applicant substantially underestimated the task of reintegration.

Further, there had been a significant
    development. Dr. Haner learned that [M.M.s new spouse] was pregnant. That news
    had not been communicated to D.M. or S.M. Dr. Haner said M.M. was naïve when it
    came to the implications of adding a new child to the equation, particularly
    given the nature and extent of the negative comments directed toward [M.M.s
    new spouse].

[23]

In her report to the court, Dr. Haner concluded
    that 
[t]his is an impossibly difficult situation in which there is
    no good answer
 (emphasis in original). Dr. Haner made the
    following recommendations, among others:

a. The parties, the children and [the fathers
    new spouse] participate in an intensive, three-month long therapeutic plan
    overseen by a case manager/lead therapist;

b. Each child receive individual counselling
    to treat their symptoms of anxiety and build coping, emotional regulation and
    distress tolerance skills;

c. A.M. receive counselling of a similar kind
    and for similar purposes;

d. M.M. receive counselling, psychoeducation
    and support to prepare for the eventual reintegration of the children into his
    home and with C. and the new baby.

[24]

Notably, she did not recommend that the children
    be transferred to the fathers home with no contact with the mother.

[25]

In her testimony at the review hearing, Dr. Haner
    was asked the following question and gave the following answer:

Q.
Do you
    believe the upcoming birth of [the fathers new spouse] and [the father]'s
    child will have an impact on their relationship between the children and their
    father?

A.
Yes, I do. I
    think it is going to need to be navigated carefully. There appeared during the
    assessment to be a
misperception in [the father]'s family  that their
    siblings would automatically love having a new half sibling
. I recall [a
    family member] discussing with me and her opinion was that everybody loves a
    baby, and that D.M. would love to have a new sibling, she loves children.
    However, you know, through other discussions and interviews with the children I
    came to understand that
[D.M. and S.M.] reported being fearful that their
    father would replace them with a new sibling at some point, with new children
.
    I think that particularly at a time where new parents are needing to spend a
    lot of time and attention in the caretaking of an infant, or in the, you know,
    immediate prenatal and post natal periods, its a time of great stress,
    although great joy as well.
There is a risk of the children feeling replaced
.
    There is whenever there is a new family, or sorry, a new baby brought into a
    family. And I think that
this issue needs to be very carefully considered in
    terms of the timing and way in which the children are introduced to their new
    half sibling
. And also, to [the fathers new spouse], who rightly or
    wrongly, their current, well their perception when I finished the assessment
    was that they viewed her as the reason why their father was no longer living
    with them. [Emphasis added.]

[26]

The judge, in his Reasons on Review, recounted a
    number of unsuccessful attempts at counselling and assessment to assist the
    parties. The reviewing judge attributed the lack of success entirely to the
    mother and held that, I continue to have no doubt that M.M. is devoted, loving
    and committed to bettering the lives of his children  I commend M.M. for his
    behaviour and his plan.

[27]

However, the judge again denied the father the
    relief he sought on three bases set out in his Reasons on Review. First, he noted
    that M.M. and his new spouse had a newborn child. As mentioned, the applicant
    had not discussed the pregnancy, let alone the birth, with D.M. or S.M. Further,
    the reviewing judge considered that the magnitude of the change that would
    occur if the court made the order sought is simply too great and the
    consequences too unpredictable for the mother, the father, and especially D.M.
    and S.M. Second, the uncertainty and instability of the pandemic remained. Third,
    he accepted Dr. Haners analysis and recommendations as compelling and
    well-supported. Specifically, he accepted her statement that there is no
    long-term future for D.M. and S.M. if they cannot navigate the short-term. He
    also accepted Dr. Haners view that the immediate mental health of the parties
    children had to be prioritized.

[28]

He therefore ordered that both parents continue
    to share custody of the children and the children continue to reside primarily
    with the mother with the father being provided access to the children as
    specified in his order. He also made specific orders regarding ongoing
    counselling and therapy for both parents and the children.

THE POSITIONS OF THE PARTIES ON APPEAL

[29]

The appellant father asserts that the reviewing
    judges order that the parties continue to share custody and these children
    continue to reside with the mother is contrary to the best interests of these
    children. He argues that (i) the reviewing judge misapprehended the evidence
    about the effect of the appellants new child  it was simply something to be
    navigated; (ii) there was no explanation of why the pandemic precluded the
    order reversing custody; and (iii) the order is incompatible with the
    childrens long-term mental health, which requires them to establish a healthy
    relationship with their father.

[30]

The father submits that all three reasons cited
    by the judge in his Reasons on Review are contrary to the best interests of the
    children.

[31]

The respondent mother is self-represented and
    filed no material. In her oral submissions, she submitted that the reviewing
    judge did not err in concluding that these children should remain with her,
    that she share custody with the father, and that the parties and these children
    undergo counselling. She outlined the personal challenges she has faced: the
    marital breakdown, her mothers illness, caring for children alone, and reintegrating
    into the workforce.

[32]

She disputes the fathers characterization of
    Dr. Haners findings and submits that, on the contrary, Dr. Haner found that
    the fathers new child poses a significant challenge to the childrens sense of
    belonging and wellbeing in the fathers care. She also claims the COVID-19
    pandemic poses challenges including the inability to meet in person with
    counsellors and therapists, family, and school friends. Finally, she disputes
    the fathers claim that she alone is responsible for the childrens failure to access
    mental health supports.

THE LEGAL ISSUES

[33]

An appeal court should
    not retry parenting order cases:
C.S. v. M.S.
,

2010 ONCA 196
, 262 O.A.C. 225, at para.
4
. As stated in
Van
    de Perre v. Edwards
,
2001 SCC 60
, [2001] 2 S.C.R. 1014, at para.
13
:

Custody 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. This discretion vested in the
    trial judge enables a balanced evaluation of the best interests of the child
    and permits courts to respond to the spectrum of factors which can both
    positively and negatively affect a child.

[34]

Social science evidence regarding the
    effectiveness of reversal of custody orders in cases of alienation is
    inconclusive: see Nicholas C. Bala and Katie Hunter, Children Resisting
    Contact & Parental Alienation: Context, Challenges & Recent Ontario
    Cases (2015), Queen's University Legal Research Paper No. 056, online: <ssrn.com/abstract=2887646>,
    cited in
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1 (
A.M. v.
    C.H. (ONCA)
), at para. 76, affg 2018 ONSC 6472 (
A.M. v. C.H.

(ONSC)
).

[35]

As the motion judge in
Leelaratna v.
    Leelaratna
, 2018 ONSC 5983, at para. 52, observed, a large and
    liberal interpretation of the statutory and regulatory powers conferred upon
    the courts to make a wide variety of orders with regards to parenting [under
    ss.16(1) and (6) of the then-in-force
Divorce Act
, R.S.C., 1985, c. 3
    (2nd Supp.), and ss. 28 and 30 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12], including therapeutic orders, is also entirely
    consistent with the courts duty to promote the best interests, protection and
    well-being of children.

[36]

Although courts retain wide discretion in
    crafting their orders, custody dispositions are, as a practical matter, often limited
    in cases of parental alienation. Courts may (a) do nothing, and leave the child
    with the alienating parent; (b) reverse decision-making and primary residence,
    and place the child with the rejected parent; (c) leave the child with the
    favoured parent and order therapy and counselling; or (d) provide a neutral,
    transitional, placement for the child and order therapy, so as to facilitate a
    placement with the rejected parent at a later date: see
A.M. v. C.H. (ONSC)
,
    at para. 110.

[37]

Where a reversal of decision-making and primary
    residence has been ordered, courts may order that that the alienating parent
    have no contact with the child for a minimum period: see
M.M.B (V.) v. C.M.V.
,
    2017 ONSC 3991;
Foley v. Foley
, 2016 ONSC 4925;
A.M. v. C.H.
(
ONSC
), affd in
A.M. v. C.H. (ONCA)
.

[38]

In this case, the reviewing judge acknowledged
    that the best interests of the children are always paramount. He did not err
    in articulating the best interest of the children in coparenting disputes.

[39]

The reviewing judge noted serious concerns about
    leaving these children in the mothers care and he was critical of the fact that,
    in his view, the mother had made insufficient effort to ensure that these
    children had access to therapy and counselling that they sorely need, despite
    the previous court order. However, he found that there were other serious
    considerations to be considered in determining what was in the best interest of
    these children. The cumulative effect of the three factors he outlined,
    concerns about (i) the fathers insufficient insight into the childrens likely
    reactions to his newborn child with his new partner, (ii) pandemic-related
    stressors, and (iii) the experts concerns about the seriousness of the
    childrens immediate mental health concerns, together satisfied him that the
    childrens best interests required them to remain living with the mother. His
    final order awarded joint decision-making to both parents, parenting time with
    the father, and ordered that the parties and the children attend therapy and
    counselling.

[40]

He noted that the father and his new spouse had
    not yet told D.M. and S.M. of the pregnancy and the birth of their new child.
    That child is very young which, of course, means it will require a significant
    amount of attention. As Dr. Haner noted, these children have said they believe
    the fathers new relationship broke their family unit, they have expressed
    concerns that their father would replace them with a new sibling at some point,
    both of their mental states are very fragile, and each has expressed animosity
    and hostility to the father.

[41]

In my view, there was ample evidence to support
    the reviewing judges conclusion that the consequences of this change in
    circumstances is too unpredictable for these vulnerable children. He did not
    misapprehend the evidence on this point and his conclusion was based on the
    evidence before him, including the experts report and testimony.

[42]

Secondly, the reviewing judge noted the effects
    of the COVID-19 pandemic. He noted the province-wide shutdown and school
    closures. While he did not outline how, in his view, this would adversely
    affect these children, there can be no dispute that the pandemic has been
    disruptive for children. The inability to meet and interact in person with
    counsellors and therapists, teachers, friends and other support people has created
    challenges especially for those who are already very vulnerable.

[43]

In my view, there was no error in adverting to
    the pandemic as relevant in considering whether to disrupt one of these
    childrens few sources of stability  their life with their mother in her home 
    during a time when many other aspects of their lives have been disrupted.

[44]

Thirdly, the reviewing judge relied on the
    opinion of Dr. Haner, who explained in her report that, in her view, there is
    no long-term future for these children if they cannot navigate the short-term
    and the immediate mental health of the parties children had to be prioritized.
    The reviewing judge found her analysis was compelling and her recommendation
    well supported.

[45]

The father claims that since Dr. Haner filed her
    report and testified at the review hearing, things have changed.

[46]

I do not agree.

[47]

Dr. Haners letter, submitted as fresh evidence,
    does not indicate that there has been a material change since her testimony at
    the review hearing weeks before, nor does she state that the children cannot
    and should not continue to reside with the mother. Dr. Haners overarching
    concern was the termination of ongoing judicial oversight. She did not say in
    her letter that the children should be transferred to the fathers home without
    contact with the mother or that the childrens primary residence and
    decision-making should be with the father.

[48]

Dr. Haner
concluded:

I would be willing to reconsider and would
    likely accept case management responsibility for the family if there was a
    commitment from the Court to provide continuity in oversight such as I would be
    agreeing to. Without the consistent oversight of a Judge sufficiently familiar with
    the details and progress of this case, to whom I can report, and on whom we all
    can rely to enforce consequences for non-compliance, I am of the opinion that
    no further progress will be made by [the mother], and therefore, also the
    children.

[49]

There is no evidence that, in view of this
    letter, any further judicial oversight has been sought prior to the bringing of
    this appeal.

[50]

There were no easy answers in this case.
    However, the judge below considered factors directly relevant to the childrens
    best interests and concluded that reversing the location of their primary
    residence was not in their best interests. I see no error in his approach or
    conclusion given the combined effect of (i) the new family situation in the
    fathers household that is unknown to the children such that they cannot have adjusted
    to it; (ii) the inability to access the same resources and interact in person
    with those who could assist with counselling, therapy and emotional wellbeing;
    and (iii) the fact that reversing primary residence is almost certain to
    negatively affect these children in the short-term, while the social science evidence
    about the long-term success of such an intervention remains inconclusive.

[51]

In my view, in all the circumstances of this
    case, the reviewing judges orders were made in these childrens best
    interests.

[52]

As the reviewing judge recognized, this is a
    very sad tale of two young children who have suffered terribly as a result of
    the marital breakdown. They are angry, hurt and vulnerable. They have also been
    privy to actions and words children should not be privy to.

[53]

Both parties love and want to be with their
    children. The children deserve to have two parents who, while they may no
    longer love one another, are both loving parents each of whom is given the
    opportunity to express their love for and spend time with their children.

[54]

This has not been the case to date.

[55]

While the mother faces her own challenges, she
    is ordered to assist the children to get the counselling and therapy that they
    need to enable the father to have the contact he needs with them to build a
    relationship with these children.

DISPOSITION

[56]

For these reasons, I would dismiss the appeal.

[57]

In light of the fresh evidence, however, in
    which the proposed case manager declines to continue to assist the family
    absent continuing judicial oversight, I would order a brief review hearing
    in one years time. The purpose of the review hearing is primarily to preserve
    the incentive for the mother to comply with the counselling and therapy orders
    and to start to promote the childrens relationship with their father to the
    best of her ability.

[58]

I would award no costs on the appeal.

Released: June 28, 2021 D.D.

J.A.
    Thorburn J.A.

I
    agree. Doherty J.A.

I agree. Gary Trotter J.A.





[1]
Amendments to the
Divorce Act
,
    R.S.C., 1985, c. 3, came into effect on March 1, 2021. Among other changes to
    the Act, certain terminology has been changed. What was previously known as
    custody and access are now decision-making responsibility and parenting
    time or contact, respectively.


