[D.A.L.(F.) ] PETITIONER - v. -, 2003 SKQB 132

2003 SKQB 132 DIV. A.D. 19 96 No. 669 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: [D.A.L.(F.) ] PETITIONER - and - [D.A.L .] RESPONDENT I. D. McKay, Q.C. for the petitioner F.C. Zinkhan for the respondent FIAT RYAN-FROSLIE J. March 20, 2003 [ 1 ] At issue in this application is [D.A.L.]’s relationship with his daughter, [J.L.L.]. [D.A.L.] alleges parental alienation.

He claims [D.A.L.(F.)] has “poisoned” [J.L.L.]’s mind against him and has done nothing to promote a relationship between him and his daughter. [D.A.L.(F.)] alleges [D.A.L.] was abusive, that he has not addressed this issue and that he has no relationship with [J.L.L.] because he unilaterally chose not to. [ 2 ] Lost in the “fight” is a little girl whose parents’ poor and inappropriate choices have denied her the freedom to love and enjoy both of her parents. BACKGROUND

BACKGROUND [ 3 ] The parties were married on December 1, 1984 and separated on October 2, 1996. There was one child born of their marriage, namely, [J.L.L.], born January 5, 1994 (age 9). [J.L.L.] was two and one-half when her parents separated. [D.A.L.(F.)] immediately initiated a court action claiming custody of [J.L.L.]. On October 25, 1996 Justice McIntyre of this Court ordered interim custody to [D.A.L.(F.)] with specified access to [D.A.L.] every second weekend.

The fight had begun. [ 4 ] [D.A.L.] attests his access to [J.L.L.] was thwarted by [D.A.L.(F.)] who laid complaints with the police and Family Services alleging abuse of [J.L.L.] and herself. No charges were ever laid and none of the accusations were substantiated.

As a result of [D.A.L.(F.)] ’s allegations, and out of an abundance of caution, on January 8, 1997 Justice McIntyre varied his interim order to cancel [D.A.L.]’s overnight visits with [J.L.L.]. [D.A.L.]’s response was to stop exercising access altogether because he feared [D.A.L.(F.)] would use his limited visitation to lodge further complaints against him (see para. 9 of [D.A.L.]’s February 18, 2002 affidavit). On May 8, 1997 Justice Archambault ordered a custody and access assessment. This assessment was completed on March 25, 1998 by V.M. Harding, PhD., a registered psychologist. Dr.

Harding made the following observations at pages 16-17 of her assessment: To all appearances [D.A.L.(F.)] is an excellent provider for [J.L.L.]. However, this psychologist is concerned that she may also be using [J.L.L.] to press her objective that [D.A.L.] be denied any access rights in future, by attempting to estrange [J.L.L.] from her father and make her present access visits with him as unpalatable and as emotionally taxing as possible.

There is evidence in [D.A.L.(F.)] ’s own words and descriptions of circumstances in [J.L.L.]’s home to suggest that a scenario of parental alienation from [D.a.L.] is being steadily abetted and cultivated. Dr. Harding went on to recommend counselling for [D.A.L.(F.)] to address the unresolved issues of her childhood, that [D.A.L.] take an anger management program and that both [D.A.L.(F.)] and [D.A.L.] enroll in parenting classes. She also recommended that [J.L.L.] receive individual therapy and that both parents participate in that therapy to ensure [J.L.L.] was not further alienated. Dr.

Harding also recommenced that [D.A.L.(F.)] receive sole custody of [J.L.L.] and that [D.A.L.] have specified access. As a result of Dr. Harding’s recommendations, [D.A.L.] and [D.A.L.(F.)] reached an agreement which was reflected in the judgment of Justice McIntyre dated April 14, 1998. That judgment incorporated Dr.

Harding’s recommendations with regard to custody and access but not her recommendations with regard to counselling, parenting classes or therapy. [D.A.L.(F.)] totally ignored those recommendations. [D.A.L.] took some steps to comply. [ 5 ] Even though [D.A.L.] received specified access to [J.L.L.], he immediately decided not to exercise that access. In paras. 13 and 14 of his February 18, 2002 affidavit, he attests to his reasons for doing so.

He wanted a “cooling off” period. [D.A.L.(F.)] had sued [D.A.L.] for damages alleging assault and the property and support issues remained unresolved and were going to trial. “The unceasing investigations, motions and trials” had left him emotionally exhausted. [D.A.L.] said nothing to[D.A.L.(F.)] or to [J.L.L.] about his intent not to exercise access. He simply “disappeared” from [J.L.L.]’s life other than to send her birthday and Christmas gifts.

To his credit, [D.A.L.] faithfully paid his child support. [ 6 ] Three years and eight months later, in December, 2001, [D.A.L.] tried to contact [D.A.L.(F.)] to reestablish access with [J.L.L.]. [D.A.L.(F.)] did not respond to him until January 30, 2002 at which time she had her lawyer write [D.A.L.] and advise him that she felt it would not be beneficial to [J.L.L.] to resume contact. [D.A.L.] then commenced the within application. [ 7 ] This Court has attempted, since March, 2002 to monitor the situation and reestablish [D.A.L.]’s relationship with [J.L.L.].

All efforts have failed and counsel for both parties now request a decision be made with regard to [D.A.L.]’s access to [J.L.L.]. [D.A.L.] argues that if access cannot be reestablished, it is due to [D.A.L.(F.)]’s “poisoning” of [J.L.L.] and that as such he should not be required to pay child support. He wants to place his support payments into a registered education fund for [J.L.L.]. [ 8 ] Counsel did not wish to cross-examine on the affidavits, nor did they wish to present viva voce evidence. I find that there is more than enough evidence before me to deal with the issues at hand.

ANALYSIS [D.A.L.]’s access to [J.L.L.]

[ 9 ] In the last year two further Court ordered assessments have been completed. Counselling and parent education have been ordered for both parties and for [J.L.L.]. On June 12, 2002 this Court also ordered supervised access for [D.A.L.]. None of the steps taken by this Court have prompted the parties to put aside their fight and concentrate on [J.L.L.]’s best interests. Final argument focussed not on what is best for [J.L.L.] but on a continuation of the finger-pointing between [D.A.L.] and [D.A.L.(F.)]. [D.A.L.] and [D.A.L.(F.)] just do not get it. They are both at fault for the situation that exists today.

Instead of putting blame aside and concentrating on [J.L.L.]’s best interests and how to establish a relationship between her and her father, they continue the blame game. [ 10 ] Based on the evidence before me, I find that [D.A.L.(F.)] has alienated [J.L.L.] from her father. Dr. Harding, in her 1998 report, clearly felt parental alienation by [D.A.L.(F.)] was occurring. The Court ordered focussed assessment done by Debbie Watson in May, 2001 speaks volumes.

At page 16 she states: Given [D.A.L.(F.)] ’s strongly voiced opinions regarding [D.A.L.], it is unlikely that [J.L.L.] has been able to secure any positive memories of her father given [D.A.L.(F.)] ’s ongoing negative perception of [D.A.L.] and his parenting abilities. Ms. Watson recommended that [D.A.L.] have access to [J.L.L.] through the Supervised Access Program for a period of six months and that [D.A.L.(F.)], [D.A.L.] and [J.L.L.] be in counselling during that time frame.

She also recommended that [D.A.L.] attend the Alternative to Violence Program and that [D.A.L.(F.)] attend both the program for women who have experienced domestic violence and a parenting class. It was suggested that both [D.A.L.(F.)] and [D.A.L.] attend the separation and divorce seminars offered by Family Justice Services and that [D.A.L.(F.)] provide to [D.A.L.] copies of [J.L.L.]’s academic performance and keep him informed of any medical, educational or social activities [J.L.L.] was involved in. That information was to be passed through the lawyers.

It was this report that formed the basis of the June 12, 2002 order. Unfortunately, neither party complied with that order. No counsellor was obtained for [J.L.L.] nor did [D.A.L.] or [D.A.L.(F.)] engage in counselling, take the parenting after separation course or the Alternatives to Violence programs as ordered. While [D.A.L.] had an ability to attend [J.L.L.]’s extracurricular activities, he did not do so. It was left to this Court to try to “force” compliance. [J.L.L.] finally attended a counsellor on September 13, 2002 but regular counselling was not facilitated by [D.A.L.(F.)] until mid-November, 2002.

Supervised access was attempted after September 13, 2002 but this ended in failure because [J.L.L.] refused to participate. The report of [J.L.L.]’s counsellor, Laurel Phillips, states that: ...She [[J.L.L.]] continues to assert, almost weekly, that she will refuse to see her father, and that she does not want to continue counselling. Certainly, the significance of the loss of her father cannot be underestimated. However, she cannot be forced into a relationship with him. Ms. Phillips indicated that [J.L.L.]’s references to her father were “vague” and “unclear”.

A further updated assessment completed by Anne Neeson on December 6, 2002 recommended that [D.A.L.] withdraw his application for access. At page 12 of her report, Ms. Neeson stated as follows: It is my opinion that [J.L.L.] is losing out by not taking the opportunity to try and establish a relationship with her dad. It is my opinion that there may well be negative consequences in [J.L.L.]’s future because of this. However, sanctions against [D.A.L.(F.)] mean sanctions against [J.L.L.] and trying to force [J.L.L.] against her will to visit with [D.A.L.] is also negative.

I believe that [J.L.L.] may reach a place where she may want to consider contact with dad if she is involved in individual counselling (this could mean months or even years) and if she reaches an age or stage when she begins to think for herself and challenge her mom’s view of the world. This process would be assisted by individual counselling for [D.A.L.(F.)] in which her views are challenged and her fears of the past resolved, to allow her to deal with the present more appropriately, not counselling which supports and sympathises with her current views and fears.

I do not think [D.A.L.(F.)] is ready for this, which means that any potential progress for [J.L.L.] will be much more difficult to achieve.... [ 11 ] [J.L.L.] was two and one-half years old when her parents separated. Since then she has had minimal contact with her father and no contact now for almost five years. I find that [J.L.L.]’s fears and anger are based on her mother’s attitude and opinions.

It is heart- rending to think that this little girl, who needs and deserves two parents, is denied her father because her mother chooses not to seek help. [D.A.L.(F.)] has been given every opportunity to change things. She did not seek counselling for herself or for [J.L.L.] until forced to do so by this Court.

Both parties have money for lawyers but no money for the professional help needed to repair the harm done by the decisions they have made. [J.L.L.] will never have a relationship with her father so long as her mother sees no benefit to such a relationship. [ 12 ] What makes this case difficult is [D.A.L.]’s unilateral decision not to exercise his court-ordered access to his daughter.

This failure has negatively impacted [J.L.L.] and no doubt reinforced with her the negative opinions held by her mother. [D.A.L.] returned to this Court after a four year absence from his daughter’s life alleging [D.A.L.(F.)] was in contempt for not allowing him access. While there is no question [D.A.L.(F.)] has alienated [J.L.L.] from her father, [D.A.L.] assisted in that alienation by abandoning his parental role. It is not equitable that he now foist all the blame for the current situation on [D.A.L.(F.)] ’s shoulders. He is in part

responsible for the current dilemma which, simply stated, is that his nine-year-old daughter does not know him and does not want contact with him. This Court’s ability to assist in rectifying that situation is severely hampered by the amount of time that has passed since [D.A.L.] last had contact with [J.L.L.]. Early court intervention was not possible.

If there had been a continuing relationship between [D.A.L.] and [J.L.L.], the options available to this Court would be significantly greater. [J.L.L.]’s counsellor and indeed the Court- appointed assessors, no longer view visitation between [J.L.L.] and her father as being in her best interest, nor is it in [J.L.L.]’s best interest that custody be changed. For all intents and purposes, [J.L.L.]’s father is a stranger to her.

To rob her of her mother at this point in her life would amount to cruelty. [ 13 ] While this Court believes it is in [J.L.L.]’s best interest to have a relationship with her father, trying to “force” such visitation is not a feasible solution. “Force” is no doubt bound to fail, but given [J.L.L.]’s age, “persuasion” may still result in a positive outcome.

This will only occur if [D.A.L.(F.)] recognizes how destructive her attitude towards [J.L.L.]’s father is and if [D.A.L.] acknowledges his own role in creating the current situation and commits himself to doing whatever he can to reestablish a relationship with [J.L.L.]. If he chooses to walk away, any chance of [J.L.L.] knowing her father will go with him. [ 14 ] While visitations are not an option at this time, contact between [D.A.L.] and [J.L.L.] should be encouraged. I therefore order: 1. That [J.L.L.] shall continue in counselling with Laurel Phillips for at least a further six month period.

As part of that counselling, [J.L.L.]’s memories of her father should be addressed and her perceptions of him challenged. Counselling shall only terminate after six months and on the recommendation of [J.L.L.]’s counsellor. 2. [D.A.L.] shall communicate with [J.L.L.] through Ms. Phillips via letters and/or videos. [D.A.L.] shall discuss with Ms. Phillips the appropriate content of such communications and Ms. Phillips shall monitor that communication to ensure it is appropriate. Ms. Phillips shall ensure all letters and/or videos are read to and/or viewed by [J.L.L.].

Should [J.L.L.] want to “meet” her father, this shall be arranged through Laurel Phillips. 3. The costs of [J.L.L.]’s counselling shall be borne equally by [D.A.L.(F.)] and [D.A.L.]. 4. Both [D.A.L.(F.)] and [D.A.L.] shall be entitled to receive information from Ms. Phillips on [J.L.L.]’s progress and shall participate in any sessions recommended by Ms. Phillips. 5. [D.A.L.] shall within seven days of the date of this order, provide to Laurel Phillips the following documents: (

i) a copy of Dr. Harding’s assessment dated March 25, 1998; (ii) a copy of Debbie Watson’s assessment dated May 31, 2002; (iii) a copy of Anne Neeson’s assessment dated December 6, 2002; (iv) a copy of this fiat. 6. [J.L.L.] shall be enrolled in and complete the next available series of sessions entitled “Separation and Divorce Group for Children” (ages 7 to 14) offered through Catholic Family Services in Regina. The contact person is Jim Appleby (525-0521). A copy of my order shall be provided by [D.A.L.] to Mr. Appleby and if Mr.

Appleby requires parental contact and/or involvement, both [D.A.L. (F.)] and [D.A.L.] shall participate. A letter from Mr. Appleby shall be filed confirming [J.L.L.]’s enrollment and attendance in this group. 7. [D.A.L.] and [D.A.L.(F.)] shall both complete the parenting after separation course offered through Family Justice Services and shall file certificates of completion with this Court within 60 days. If the parties have completed this course within the last two years,

certificates verifying that shall be sufficient compliance with this order. 8. Pursuant to s. 26(1) (

c) of The Children’s Law Act, 1997 , S.S. 1997, c. C-8.2 [D.A.L.(F.)] shall forthwith either pay into Court cash of $2,000 or provide to this Court a $4,000 bond as security for her performance of her obligations pursuant to this order which include [J.L.L.]’s participation in counselling and the Separation and Divorce Group for Children. [D.A.L.(F.)] may apply to this Court for the release of the security after September 30, 2003. 9. It is recommended that [D.A.L.(F.)] continue individual counselling to address her past issues and her negative feelings towards [D.A.L.].

It is also recommended [D.A.L.] complete an Alternatives to Violence program or file proof of completion of such a program within the last two years. Child Support [ 15 ] On June 29, 1999, Justice McIntyre made an order that [D.A.L.] pay to [D.A.L.(F.)] the sum of $386 per month as support for [J.L.L.]. Because [D.A.L.] does not have a relationship with [J.L.L.] he requests that his child support be paid into a registered education fund for [J.L.L.]’s benefit. I am not inclined to do so. A review of the case law on this issue establishes two lines of authority.

The first line of authority holds that the suspension of child support is not an appropriate response to denial of access. The leading case in this line is Lee v. Lee (1990), 1990 CanLII 2254 (BC CA) , 29 R.F.L. (3d) 417 (B.C. C.A.) . In that case the British Columbia Court of Appeal held that a custodial parent’s misconduct was not a proper reason for the non-custodial parent to pay less than the appropriate amount of child support. It is noted that the Court of Appeal in that case was dealing with an application to vary maintenance as opposed to an application for access.

The second line of authority holds that in extreme cases suspension of support payments may be warranted. The leading case is Paynter v. Reynolds (1997), 1997 CanLII 24531 (PE SCAD) , 34 R.F.L. (4th) 272 (P.E.I. C.A.) . The Prince Edward Island Court of Appeal at para. 36 of that decision commented as follows: The court is not without recourse in cases like this where the custodial parent does not take all the necessary steps to see that the terms of an order are complied with properly.

Such remedies as contempt, cancellation of child support, a change in the custodial parent are some of the real possibilities. [ 16 ] Whichever approach is adopted, the best interests of the child must be the overriding consideration. [D.A.L.(F.)] is a single parent with limited income. It is clear suspension of child support is not consistent with [J.L.L.]’s best interest. [D.A.L.] argues his proposal is not a “suspension” but the effect is the same – a decrease in the funds available to meet [J.L.L.]’s day-to-day needs. [J.L.L.] should not be punished for her mother’s wrongdoing.

There are other remedies available to this Court that are more appropriate such as the posting of security by [D.A.L.(F.)] . COSTS [ 17 ] Both parties argue the other should pay solicitor/client costs with regard to this Court application. In light of the fact that both share some responsibility for what has transpired, I am not prepared to order any costs in the circumstances. ____________________ J.