Anderson v. Renzetti, 2012 NSSC 361

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Anderson v. Renzetti, 2012 NSSC 361 Date:20121025 Docket: 1201-063236 (SFHD-62365) Registry: Halifax Between: Jessica Anderson (Renzetti) Applicant v. John Renzetti Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 15,16 and 17, 2012 in Halifax, Nova Scotia Subject: Family Law; Application to vary custody, access and child maintenance pursuant to the

section 17 of the Divorce Act , 1985.

Summary: The parties were divorced in December 2010 after a lengthy trial with respect to the custody of their four young children. The trail judge ordered joint and shared custody on a week on week off basis and ordered child support based on a shared custody arrangement including a sharing of the children’s before and after school childcare costs. The extreme conflict between the parties that existed up to the time of their divorce continued subsequent to their divorce.

The Respondent (husband) did not comply with the terms of the Corollary Relief Order and failed to return the two older children to the Applicant (mother) as was required by that order and for many months prior to the hearing of her Application the Applicant had no access to those children whatsoever. Result: Originally a Trial had been scheduled but at the request of the Respondent and with the agreement of the Applicant, the trial was converted to a Binding Settlement Conference. No agreement was reached. The final decision was left to the Court.

The Court concluded that the Respondent had alienated the two older children against their mother and as a result ordered that the mother would have sole custody and primary care of the two younger children with limited specified access to the Respondent. Joint custody of the two older children was granted to both parties with primary care granted to the Respondent. A Custody and Access Assessment (which included a psychological assessment of both parties) had concluded that without a variation there was a very real

possibility that the two younger children would also be alienated against their mother. The assessor was also of the opinion that granting the Applicant primary care of the two older children may cause them further psychological damage and may result in them running away. It was also ordered that the parties and the children take

part in therapy with a view to the Respondent gaining an appreciation of what he has done to the relationship between the two older children and their mother, to prevent the same alienation from happening with respect to the two younger children and, ultimately with the hope of reestablishing a relationship between the Applicant and two older children. Child support was ordered pursuant to s. 8 of the Guidelines (split custody) and a sharing of the childcare costs of the two younger children. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Anderson v. Renzetti, 2012 NSSC 361 Date: 20121025 Docket: 1201-063236 (SFHD-62365) Registry: Halifax Between: Jessica Anderson (Renzetti) Applicant v. John Renzetti Respondent

Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 15, 16 and 17, 2012, in Halifax, Nova Scotia Counsel: Jessica Anderson, Self-represented Anthony Brunt counsel for John Renzetti By the Court: THE APPLICATION [1] The Applicant, Jessica Anderson, applied pursuant to

section 17 of the Divorce Act R.S.C. 1985, c. 3 to vary the custody , access and child support provisions of the parties ’ Corollary Relief Order (the CRO) which was granted by the Honourable Justice Lawrence O ’ Neil (as he then was) on December 2, 2010. She also requested costs of her application. [2] At the commencement of what was to be a hearing of this matter counsel for the Respondent proposed that, instead of a hearing, a Binding Settlement Conference would be a more efficient method of addressing the issues raised by the Application.

Also, because a Binding Settlement Conference would presumably be a less adversarial process, it was submitted it would better serve the interests of the children. [3] Binding settlement conferences are a form of alternative dispute resolution that this and other courts have been resorting to with increasing frequency over the past decade. One of the earlier cases that reached the appeal level that acknowledged the court ’ s jurisdiction to conduct binding settlement conferences (or binding mediation) was J.W. Abernethy Management & Consulting Ltd. v. 705589 Alberta Ltd. 2005 ABCA 103 (Alta. C.A.) .

Although not a family law case it confirmed the utility of such a process. [4] After I explained to the Applicant (who was without counsel) the difference between a hearing and a Binding Settlement Conference she agreed with the Respondent ’ s counsel ’ s suggestion to convert the hearing to a Binding Settlement Conference. That is how this matter was conducted. [5] Unfortunately, as the matter progressed, there was little difference between how the Binding Settlement Conference unfolded as compared to how a hearing would have proceeded.

In order to establish a record I allowed the parties to cross-examine each other under oath as well as question other witnesses that would have testified at their hearing. There was not as much negotiation as I would have hoped. Both parties were somewhat polarized in their positions. [6] The “ Record ” created by the Binding Settlement Conference process was comprised of the following: 1. The Applicant ’ s Notice of Variation Application; 2. The affidavit of the Applicant sworn October 6, 2011;

3. The supplementary affidavit of the Applicant sworn September 14, 2012; 4. The Applicant ’ s Parenting Statements dated October 5, 2011 and September 14, 2012; 5. The Statements of Income of the Applicant sworn September 14, 2012 and October 5, 2011, her Statement of Special or Extraordinary Expenses sworn September 14, 2012 and her Statement of Special or Extraordinary Expenses sworn October 5, 2011; 6. The affidavit of Mr. Paul Walter sworn October 6, 2011; 7. The affidavit of the Respondent sworn September 28, 2012; 8.

A letter from the Respondent ’ s counsel dated October 11, 2012 to which was attached an additional page which was intended to form part of Exhibit 1 to the Respondent ’ s affidavit; 9. The affidavit of the Respondent ’ s wife sworn September 28, 2012; 10. The Respondent ’ s Statement of Income sworn September 12, 2012; 11. The Respondent ’ s Parenting Statement dated September 28, 2012; 12. Three separate documents given to me by counsel for the Respondent during the course of our Binding Settlement Conference including:

a) An exchange of e-mails between the Applicant and the Respondent that apparently took place in mid-July, 2011;

b) Various documents relating to their youngest child ’ s testing at the I.W.K. and the Nova Scotia Hearing and Speech Centre which referral was made in June of 2010 with an appointment date originally scheduled for November 16, 2010;

c) Copies of further e-mails authored by the Applicant in February, 2009, an email to the Respondent from a gentleman who had at one time dated the Applicant which e-mail is dated February 25, 2009 and a copy of a letter sent by the Applicant to the Crown Prosecutor in relation to charges that were laid against the Respondent as a result of an incident on December 22, 2008. 13. The assessment order which I granted and which was issued on January 13, 2012; 14. An amended assessment order issued February 13, 2012; 15. A further amended assessment order dated May 28, 2012; 16. The Curriculum Vitae of Ms. Heather Power, M. Sc., Clinical and Forensic Psychologist;

17. The Custody and Access Assessment report authored by Ms. Power dated July 3, 2012; 18. A facsimile received from Ms. Power addressed to one of the Court’s officers to which was attached Ms. Power’s

summary of herinterview with Mr. Walter which were inadvertently omitted from her report and which notes were intended to form part of her report; 19. The verbal evidence of the witnesses that attended the Binding Settlement Conference. [7] I also considered the written brief that was prepared by the Applicant dated October 10, 2012. BACKGROUND [8] The parties were married in January 1999 after a very short courtship. They separated in 2008 after almost ten years ofmarriage.

They have four children namely Daisy (now 12), Cruz (now 11), Ella (now 7) and Nate (now 5). [9] The parties were divorced on December 2, 2010 after a 13 day trial in which the main issue was the parenting arrangementsfor the children. [10] According to the decision of O’Neil, J., following the parties’ separation the children lived primarily with the Applicant butspent alternate weekends with the Respondent as well as some weekdays. Other findings of O’Neil, J. include the following: 8. “Mr. Renzetti left the parties’ home on December 23, 2008, as a result of an alleged assault on Ms. Anderson.

He was charged andmade subject to release conditions. The charge was ultimately withdrawn [after Ms. Anderson recanted her earlier statement]...”. Heagreed to a peace bond as part of a plea agreement and the charge(

s) were dismissed. 9. “Officials of the Minister of Community Services became involved following Mr. Renzetti’s arrest and the allegations of domesticviolence. The physical separation of the parties brought about in late December 2008 gave rise to conflict between the parents about theparenting of their children. The parties exchanged accusations about each other.” [11] It should be noted that the trial before O’Neil, J. included not just the parties’ divorce proceeding but also a proceeding underthe Children and Family Services Act S.N.S. 1990 c.5.

At paragraph 17 O’Neil, J. said: “I am satisfied that the children remain in need of protective services because there is a substantial risk of emotional harm as thatlanguage is used in s. 22 (2) (

g) of the CFSA. That risk arises because of the atmosphere of intense conflict that has existed between theparties and will possibly continue. The parties do not dispute that this is so.” [12] After considering sub-section 3 (2) of the Children and Family Services Act (supra), sub-section 16 (8) of the Divorce Act(supra) and the considerations listed by Justice Goodfellow in his decision Foley v. Foley, (NS SC), [1993] N.S.J. No.347 wherein Justice Goodfellow listed various factors that are to be considered by the Court when determining custody, O’Neil, J. drewa number of conclusions including:

• Both parents, in his view, could adequately care for the children and should have the opportunity to continue to do so in a significant role (paragraph 40); • The degree of risk was in the conflict between the parties (paragraph 41); and • Both parents were capable of meeting the physical needs of the children and were also able to provide positive role models (paragraph 43). [16] Keeping in mind that the parties were then both seeking primary care of all four children (as they are now) O ’ Neil, J. said at paragraph 51: “Both of these parents have much to offer the children.

Currently, they are both contributing in significant ways to their children. Neither plan offered by these parents, in my view, is better than the other. They have different parenting styles and availability. The children do need more time with Mr. Renzetti.” [17] O ’ Neil, J. then ordered a joint and shared parenting arrangement with the parties sharing the care of the children on a week on, week off basis.

He said at paragraph 54: “...I find that the parties’ conflict has in large measure, been fuelled by the ongoing uncertainty and resulting insecurity each has felt about their future role in the lives of their children. It is an insecurity that has cut to the heart of what is important to each of them. It has made each hyper-vigilant of the other and given rise to a destructive, possessiveness of the children.

This couple has been in competition for the hearts and minds of the children.” [18] And also at paragraph 55: “...I am satisfied that a shared parenting arrangement will lessen the stress arising from this insecurity by reassuring each that their role and place in the lives of their children is secure.

An opportunity to parent the children on a shared basis will permit each to meet the onerous obligation that parenting four young children carries with it.” [19] Except for a period of relative peace of approximately six months following the parties ’ divorce, during which the proceedings under the Children and Family Services Act (supra) were terminated, subsequent events have demonstrated that the intense conflict that existed in 2010 never lessened and exists to this day.

EVENTS SINCE THE GRANTING OF THE COROLLARY RELIEF ORDER [20] The CRO says the following with respect to the parenting of the children: “ Custody 1 . Joint Custody of the four (4) children of the marriage is granted to the parties; Terms for joint custody

2 .

The parties share care and residence for the children according to the following terms: The parties will alternate primary care of the children on a week about basis commencing on the 19 th day of September 2010 when the Respondent, John Renzetti, shall have the children in his primary care;” [21] The remainder of the CRO addressed the issues of child support payments, the Respondent ’ s obligation to maintain health plan coverage for the children, ongoing financial disclosure and the distribution of the various matrimonial assets and debts. [22] The changes in circumstances identified by the Applicant in her initial affidavit sworn October 6, 2011 disclosed that commencing in February 2011 Daisy, the parties ’ oldest child, was not returned to her care every second week by the Respondent as required by the CRO and since June 20, 2011 she has remained in the care of the Respondent.

The Applicant has had virtually no access to her since that time. [23] She also said that the child Cruz (the second oldest child) also stopped returning to her care and has been residing with the Respondent full-time since August 14, 2011 and, like his older sister, has virtually no access to his mother. [24] While her relationship with the children was her primary concern the Applicant also pointed out that the Respondent failed to comply with the CRO as it relates to child support. He is in arrears.

Also, although the CRO contemplates all four children attending a before and after school childcare program and the parties sharing that cost, the Respondent removed the two older children from the childcare program and refused to send the two younger children to the childcare program on those weeks when they are in his care. Since October 2011 he stopped sharing the childcare expense.

The Applicant has therefore been compelled to pay the childcare costs for Ella and Cruz during the weeks they are with her as well as during the weeks they are with the Respondent in order to preserve their places at daycare, even though the Respondent doesn ’ t use the service. [25] While the parties may disagree on how these circumstances came about there is little disagreement over the fact that the Respondent has not complied with the Court ’ s order regarding the sharing of the care of the children or the payment of child support. [26] With the consent of the parties I attempted to arrange a meeting between the Applicant and Cruz at his school on the morning of the third day of our Binding Settlement Conference to see if he would talk to his mother for even a brief period of time.

It was my hope that he would and that he would meet with her in private or, failing that, under the supervision of his school principal, Madame Marquis. [27] As Madame Marquis later reported, Cruz adamantly refused to meet with his mother. LEGISLATION [28] The most relevant legislation is found in the Divorce Act (supra) which reads in part as follows: 2.(1) “child support order” means an order made under subsection 15.1(1); ....

“custody order”means an order made under subsection 16(1); .... “support order” means a child support order or a spousal support order; .... “variation order” means an order made under subsection 17(1); .... 17.

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; or (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. ....

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. ....

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

....

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage shouldhave as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where thevariation order would grant custody of the child to a person who does not currently have custody, the court shall take into considerationthe willingness of that person to facilitate such contact. ISSUES [29] The issues raised by this application are as follows: 1.

Have there been changes of circumstances as contemplated by sub-sections 17 (4) and (5) of the Divorce Act? 2. If there have been changes in circumstances since the granting of the Corollary Relief Order as contemplated by sub-section 17(4) and (5), do those changes require a change to the provisions of the CRO as they related to parenting and/or child support? 3. If a change in the custody provisions of the CRO is required, what care arrangements would be in the best interest of the childrenafter giving due consideration to the changes that have occurred? 4.

If a change of the child support provisions of the CRO is required, what would be the appropriate child support order? [30] Have circumstances changed? The leading case on what is meant by “a change in circumstance” in the context of s. 17 of theDivorce Act (supra) is Willick v. Willick, [1994] 3 S.C.J. No. 94; (SCC), [1994] 3 S.C.R. 670 (S.C.C.) in which it wassaid: “In deciding whether the conditions for variation exists, it is commonplace that the change must be a material change of circumstances.

This means a change, such that, if known at the time, would likely have resulted in different terms.” [31] Both parties acknowledged that there have been changes in circumstances since the granting of the CRO. - at least insofar asthe Applicant’s application to vary custody is concerned. I find that such changes as contemplated by sub-section 17 (4) and (5) haveoccurred since the granting of the CRO.

In addition to the unexpected events that have occurred with respect to the parenting of thechildren, I find too that the incomes of the parties have changed and the childcare costs are different than were contemplated by theCRO. THE APPLICANT’S POSITION [32] Briefly stated, it was the Applicant’s position that the Respondent “continually ignored the terms of the [Court’s] Order inseveral areas.” He has refused to return Daisy and Cruz to her care as required by the CRO and has failed to comply with the Court’sorder with respect to child support.

It was her position too that the Respondent has convinced the two older children not to have arelationship with her and she fears that without the Court’s intervention it is only a matter of time before he does the same with the twoyounger children. She wants all four children to be placed in her custody and primary care.

She also asked that the Court order theRespondent to undergo therapy and until the Court is satisfied that he can have a relationship with the children without influencing themagainst their mother, that his access be supervised. [33] She seemed to appreciate that forcing Daisy and Cruz to return to her care may invite certain adverse consequences. Daisy

and/or Cruz may very well resent being forced to live with her rather than with their father but she believes that keeping things the way they are (i.e. leaving them in the primary care of the Respondent) will mean the end of any meaningful relationship she has with her children.

She proposed, as an alternative to placing the two older children in her care, placing them in the home of a third party (such as a relative until such time as they were ready to live with her). [34] As for child support, she wants the correct amount of child support paid to her and paid on time including the Respondent ’ s share of the total daycare costs as was contemplated by the CRO. THE RESPONDENT ’ S POSITION [35] The Respondent acknowledged that he has not followed the terms of the CRO as they relate to the care of Daisy or Cruz or the payment of child support.

It was his submission, however, that it was Daisy ’ s choice and subsequently Cruz ’ s choice not to reside with their mother and that there was little if anything he could do about it. It is his position that the Applicant has only herself to blame for the choices made by the two older children. He accused her of physically abusing the children, mentally abusing the children, introducing new male friends to them too soon after the divorce, having alcohol in her home, not phoning to speak with the children frequently enough, not taking their phone calls and speaking to them inappropriately when she did.

He also believed that she put her own interests and relationships with new acquaintances over the needs of the children. He argued that it was as a result of her conduct that the children felt pushed away. [36] He said too that he has encouraged the children to see their mother and presented his phone records showing a number of calls from his cell phone to the Applicant ’ s residence as proof that the children have phoned her but that the calls weren ’ t answered or weren ’ t returned. WITNESSES [37] In addition to the parties themselves the Court received affidavits from the gentleman with whom Ms.

Anderson is now dating (Mr. Walter), Mr. Renzetti ’ s wife to whom he was married a few months ago and Madame Nicole Marquis, the principal of the school attended by the three younger children and which was previously attended by Daisy before, due to her grade elevation, she moved on to another school. [38] The Court also had the benefit of a Custody and Access Assessment report prepared by Ms.

Heather Power, M.Sc. who is a clinical and forensic psychologist who has prepared similar reports for this Court and other courts in the past and whose testimony was accepted as expert opinion evidence in courts on a number of occasions. [39] I previously ordered a custody and access assessment together with a psychological assessment of both of the parties after a Motion was made for the same on behalf of the Applicant in December, 2011.

I felt that the opinion of an expert - particularly that of an expert in the field of psychology - would be necessary in order to arrive at a decision that was in the children ’ s best interests because I felt that there were clinical and psychological issues at play and as a result of which I needed an expert ’ s opinion in order to arrive at the correct decision. [40] Ms. Power ’ s report was comprehensive and contained, in my view, valuable and useful information for the Court and, hopefully too, for the parties. [41] The parties were given an opportunity to question Ms.

Power and she answered their questions in a clear, concise and forthright manner. [42] I have considered her evidence as the opinion of an expert recognizing that she has expertise and experience in the field of psychology and custody and access assessments.

[43] I found Ms. Power ’ s recommendations and in particular the reasons behind her recommendations to be useful. In some instances I have followed her recommendations and in others I have not. It was never my intention to delegate to her the final decision making authority. That responsibility lies with the Court. There are various reasons why her recommendations and my decision differ. I may have had a different

interpretation of the evidence and what was said to me by the parties as compared to how Ms. Power interpreted what was said to her by the parties and her collateral sources. I am also guided by the law. Furthermore, care must be taken by the Court in every instance when considering the opinion of experts. An expert may draw upon various sources when forming their opinion including what the Court would consider to be hearsay.

Information that may be properly considered by an expert in formulating her opinion cannot be assumed by the Court to be factual unless the parties and their counsel ensure that those facts are properly proved. [44] Ultimately the Court must be guided by what the Court believes is in the children ’ s best interest. THE CUSTODY AND ACCESS ASSESSMENT [45] It is not my intention to repeat all of the evidence that was presented to the Court but it has all been considered. [46] Other than Madame Marquis, the only other “ independent ” witness was the assessor, Ms. Power. [47] Among other things Ms.

Power ’ s report included a family history of both parties. Neither seriously disagreed with what Ms. Power reported. [48] The Applicant, who is now 34, is an only child. She was born in Quebec but moved at various times with her parents due to her father ’ s career. Her mother was a “ stay-at-home mom ” who also babysat other children. [49] According to Ms.

Power the Applicant spoke in positive terms of her parents. [50] Although her parents divorced when she was 18 years of age she described their separation as a “ natural progression ” resulting from them “ growing apart ” . [51] She maintains a good relationship with both of her parents.

The parties ’ children also had a good relationship with their maternal grand-parents but unfortunately since Daisy and Cruz decided to have nothing to do with their mother they have shown less willingness to spend time with the Applicant ’ s parents. [52] The Applicant, historically, has enjoyed good health but she has in the past been prescribed anti-depressant medication and received therapy for problems she associated with her marriage to the Respondent. [53] As a result of a number of tests conducted by Ms.

Power she concluded that the Applicant “ likely responded to test items in an open and forthcoming manner ” . Ms. Power said that her personality test results “ suggest that she is a person who maintains a veneer of charm and friendliness; however, she may struggle with feelings of anxiety, insecurity, dependency, and experience moodiness. ” (Pg. 28) She also said: “Overall, Ms. Anderson likely has dependent personality traits and can be overly reliant on the opinion of others.

However, this does not mean that she is incapable of making independent decisions, but when she does do so, she may make them impulsively and they may be self-serving, without considerable attention to the needs of others. Certainly in the current custody battle it appears that both parents, including Ms. Anderson, are having difficulty prioritizing the needs of the children above their own, although neither parent sees this as being the case.”(Pg. 29) [54] The Respondent was born in Montreal. To Ms. Power he described his father as abusive towards his mother and his sisters and violent when he was drinking.

That abuse was witnessed by the Respondent. He said his father was an alcoholic. Sadly his father committed suicide when the Respondent was just eight years of age. The Respondent told Ms. Power that he did not have a particularly

good relationship with his mother who he felt was adversely affected by the abusive relationship she had with her husband. He left home at the age of 15 and stopped talking to his mother altogether between 2002 and 2009. According to Ms. Power ’ s report the Respondent has “ reportedly rekindled his relationship ” with his mother and said that he now maintains a positive relationship with his mother as well as his sisters. [55] Further, Ms. Power reported (and the Respondent did not disagree) that the Respondent struggled academically and socially and left school at the age of 15 after completing grade nine.

He later completed his General Education Diploma at the age of 21 and worked at various jobs. He now has a position of some responsibility in the federal public service. The Respondent is now 37 years of age. [56] Ms. Power reported that the Respondent was diagnosed with Bipolar II Disorder in November 2008 for which he receives medication. He has never engaged in therapy for his condition. O ’ Neil, J. previously concluded that this condition “ posed no concern in an assessment of his suitability as a parent ” . [57] Under the heading “ Psychological Testing and Personality Profile ” Ms.

Power said: “Although not consistent across all tests, Mr. Renzetti’s scores on the MCMI-III and the MMPI-2 indicate that he responded to test items in a highly defensive manner, by minimizing and/or denying personal faults and being unwilling to divulge personal information. Such a response style may be representative of a lack of insight into his psychological well-being, and/or a purposeful attempt to present himself favourably.

In any case, his personality tests results may be an underestimate of his current difficulties and psychological adjustment.” (Pg. 35) .... “...the undersigned believes on the basis of the case history and difficulties within his interactions with Ms. Anderson, that there may be some personality dysfunction involved in this case. With that said, individuals with personality disturbances who score on the MCMI-III similarly to Mr. Renzetti tend to be demanding of attention and in search of approval and acceptance from others.

They tend to portray themselves in superficially charming ways and conform to matters of social convention. Such individuals tend to desire to present themselves in positive ways to others, typically out of fear of rejection and loss of support from others. As such, they may also deny personal problems and attempt to minimize his (sic) negative emotions. He is likely to control any oppositional feelings he has; however, he may be prone to allowing his frustration erupt at times (sic). This is consistent with reports that Mr. Renzetti has been aggressive at times.

In addition, individuals with personality profiles similar to that of Mr. Renzetti may display negative emotions, such as depression, guilt, or anxiety, in an instrumental manner in order to deflect criticism and to turn disapproval from others into displays of sympathy and support instead.” (Pg. 35-36) [58] Ms. Power ’ s report contains considerable detail of her conversations with the parties, their children and other collateral sources which I will not repeat.

If the information that she was given is accurately reported, it is interesting to note how differently both parents perceive their children (for example the Applicant indicated that Cruz struggled with negative behaviour when he was younger relating to mental health issues including setting fires and being cruel to animals whereas the Respondent did not affirm that Cruz engaged in these behaviours. Both indicated that Cruz saw a psychologist at one time.

While the Applicant characterized Cruz as having anger related issues the Respondent disagreed and described Cruz as not having anger issues at all but rather his behaviour was “ normal behaviour for a boy his age ” ). Further, while Daisy and Cruz described their mother in very negative terms - accusing her of physical abuse, not playing with them, ignoring them, smoking and drinking and generally being abusive and not giving them priority in her life, Ella described her mother to Ms.

Power in positive terms and said that neither of her parents are physically abusive to any of the children. [59] It should be noted that because of his young age Nate was not interviewed. [60] Parenthetically when Madame Marquis gave evidence after the failed attempt to have Cruz speak with his mother she said, while acknowledging she is not a psychologist, that based on her conversation with Cruz on October 17, 2012 Cruz needed help “ big time ” and needed that help immediately.

She said that it was sad to hear a child his age describe his mother in such negative terms and as a school principal offered her opinion that somebody has to rebuild the mother-son relationship between Cruz and the Applicant.

[61] As part of the assessment process Ms. Power conducted psychological assessments of both parties. Under the heading “ Client ’ s Presentation during the Assessment Process ” she said: “Ms. Anderson presented as a cooperative participant during the assessment process. Her responses to questions during her clinical interview were direct and informative and her psychological test results indicate that she responded to test items in an open and forthcoming manner. This increases the validity of her self-reported information.” (Pg. 82) [62] With respect to the Respondent she said: “Mr.

Renzetti also presented as a cooperative participant in the assessment process. However, it is noted that he was delayed in returning paperwork to the undersigned regarding the children. In addition, his psychological test results indicate that he responded to test items in a highly defensive manner, by attempting to present himself in an overly favourable light and to minimize personal flaws.

This approach to an assessment is not uncommon in situations where there is much at stake, such as a Custody/Access assessment where one would want to appear to be functioning well; however, this approach reduces the amount of validity that can be placed in self- reported information, leading the assessor to necessarily rely more heavily on collateral information in Mr. Renzetti’s case.” (Pg. 82) [63] As for the Applicant ’ s mental health status she reported: “[Ms. Anderson] does not appear to currently meet diagnostic criteria for depression, or any other mental health disorder.

She does, however, possess some dysfunctional personality characteristics which have likely contributed to the difficulties in her relationship with Mr. Renzetti and the ongoing conflict . Namely, she appears to present as dependent and passive . ” [emphasis added] (Pg. 83) [64] Ms. Power went on to say that people with dependent personalities “...believe they cannot function without the help of others and are submissive and clingy in an attempt to get others to take care of and make decisions for them. They have difficulty making everyday decisions without the help of others.

They lack the self- confidence to initiate projects or individual activities and feel so uncomfortable and helpless when left alone that they will urgently seek another relationship when one ends. They worry incessantly about being left to care for themselves and will go to the extreme of volunteering to do something unpleasant in order to obtain nurturing and support from others. They also tend to seek new relationships after one ends.” (Pg. 84) [65] It was Ms.

Power ’ s opinion that some of these features are consistent with the Applicant ’ s history and gave as an example that when her relationship with a gentleman she started dating soon after her divorce ended she quickly entered another dating relationship with Mr. Walter. She also said that during her marriage to the Respondent she engaged in “ passive-dependent behaviour ” by taking guidance from her Bishop even when the advice that she received went against her own desires. Ms.

Power reported that the Applicant described being passive with the Respondent rather than trying to address the issues as she saw them in a more assertive manner. [66] On a positive note she reports that the Applicant seems “to have made progress with regard to not allowing her dependency needs to interfere with her parenting.... Ms. Anderson is currently exercising more patience with regard to progressing in her present relationship with Mr. Walters (sic). She was able to identify that it would be best for the custody dispute to be resolved before cohabitation with Mr.

Walters (sic) and she seems to be functioning well independently as a parent of Ella and Nate regardless of her relationship status with Mr. Walters (sic).” (Pg. 84) [67] However, Ms. Power went on to say “Nevertheless, dysfunctional personality characteristics tend to be chronic and it would be considered beneficial for Ms. Anderson to

engage in psychotherapy to address her passive-dependent traits and learn to be appropriately assertive and to not allow her own dependency needs in relationships to interfere in her positive decision making for her children.” (Pg. 84) The Applicant has acted upon this advice and has been engaged in therapy for this purpose. [68] As for the Respondent, Ms. Power opined: “...it does appear that Mr. Renzetti possess (sic) some maladaptive personality characteristics which are likely contributing to the current conflict between him and Ms. Anderson and the family problems overall.

He appears to have some narcissistic traits. Mr. Renzetti’s psychological test results suggest that he is an individual who is demanding of attention from others and who tends to present himself in a positive light. He thus may make a good first impression, but be superficially charming. He may utilize expressions of negative emotions, such as depression, anxiety, or guilty (sic), in an instrumental manner to achieve a certain end. He may attempt to control appositional feelings that he has, but may allow such negative feels (sic) to erupt at times.

This is consistent with allegations that he has been physically and verbally aggressive, such as toward Ms. Anderson, Mr. Walter, and as commented by the school principal, Ms. Marquis, who indicated that she witnessed [Mr. Renzetti] become aggressive toward Ms. Anderson’s mother. He also appears to lack an appreciable level of empathy for his children.

While he verbalizes that he is primarily concerned about their needs it does seem that he has supported the children’s distorted views of their mother, and probably contributed to these views as well... and appears to lack a sufficient level of understanding in how his role in the conflict is negatively impacting the children. In addition, Mr. Renzetti has shown arrogant and haughty behaviours, as evidenced by having filmed/audio recorded transitions (again not understanding the impact of this on the children) as well as conversations with Child Welfare. ” [emphasis added] (Pg. 85-86) [69] Ms.

Power then went on to offer the following advice: “In order for Mr. Renzetti to move forward in a positive way, he will need to identify how his own behaviour and attitudes contribute to the family dysfunction. He will need to put his own negative feelings about Ms. Anderson aside and attempt to gain an understanding [of] the importance of Ms. Anderson to the children’s lives, and support a relationship between her and the children.

In addition, he may also benefit from therapy to help him learn to better cope with negative feelings so that he appropriately manages interactions with others without resorting [to] intimidation, manipulation, or aggressive behaviour.” (Pg. 86) [70] Under the heading “ Conflictual Parenting Relationship ” Ms.

Power described the physical aggression in the home that existed prior to the parties ’ separation as “ Situational Couple Violence ” which “ more often involves minor forms of violence such as pushing, shoving, and grabbing as well as verbally aggressive behaviours ” as opposed to “ other forms of domestic violence including coercive controlling violence. ” She noted too that while the Applicant described the Respondent as controlling, the Applicant herself contributed to the situation that she was in out of choice rather than as a result of fear or anxiety. [71] The continuing conflict between the parties coupled with frequent child access, in Ms.

Power ’ s view, increased the potential for the children to be exposed to parental conflict: “This increased exposure to parental conflict in turn explains the higher incidence of emotional and behavioural problems among the children. Also, it was found that children of severe divorce disputes appear to be more symptomatic in response to making transitions between homes, even when their parents were no longer fighting.

This suggests that severe inter-parental conflict particularly if it is focussed on the child, can have long-term effects on children’s well-being even after the parental conflict ceases.” She therefore concluded: “...if this family is to move forward in a more positive manner, it would likely be best for these parents to have minimal, if any contact, in order to avoid the possibility of physical and/or verbal confrontation and disagreements to which the children may be exposed

or made privy to.” (Pg. 89) [72] Although both parties accused the other of neglecting and even physically abusing the children Ms. Power said that based on her review she had “ no evidence, other than hearsay from the parties [which] were/are in significant conflict and from children who are in turmoil, to suggest that either parents has, or will harm the children in a physical manner ” . (Pg. 90) Based on the evidence I received, I would agree.

She went on to say: “ It seems that the prominent point of concern in this case is the emotional turmoil suffered by the children , which was a notable concern expressed by Child Welfare as well.”(emphasis added) (Pg. 90-91) [73] While all of this information was significant it still did not explain to me why Daisy and Cruz chose to have absolutely no relationship with their mother. But Ms. Power was not finished. [74] Under the heading “ Alienation ” she described the concept of Parental Alienation Syndrom as follows: “The concept of Parental Alienation Syndrome (PAS) includes much more than brainwashing.

It includes not only conscious, but subconscious and unconscious factors within the preferred parent that contribute to the parent’s influencing the child’s alienation. Furthermore, it includes factors that arise within the child; independent of the parental contributions, that foster the development of this syndrome.” (Pg. 91) [75] Quoting from Garrity and Baris (1994, pg. 66), she said: “...parental alienation is very real.

It occurs when one parent convinces the children that the other parent is not trustworthy, loveable, or caring.” They continue, “This persuasion may be consciously malicious and intended to destroy the children’s relationship with the other parent. Or it may take a more insidious, even unconscious form arising from the personality issues as yet unresolved in the childhood of one parent.

Regardless of the origin or intent behind parental alienation, “it can seriously distort a child’s developing personality and subsequent life adjustment .” Most certainly it can have a detrimental effect on the relationship between the child(ren) and the targeted parent” (Pg. 91-92) [76] Ms. Power went on to say at page 92 of her report that she believed that in this case parental alienation is occurring and that the Applicant is the targeted/rejected parent and the Respondent is the aligned parent.

Still at pages 92 and 93 of her report she said: “Whatever the cause of the alienation, it is clear that Cruz and Daisy are estranged from their mother and are resisting contact with her. Unfortunately, the effect of alienation is dramatic on children. The literature suggests that children are most susceptible to alienation when they are passive and dependent and feel a strong need to psychologically care for the alienating parent, which does appear to be the case in this situation as it seems the children feel their father was the “wronged” party in the separation.

In both the child and alienating parent, there is a sense of moral outrage at the alienated parent and there is typically a fusion of feelings between the alienating parent and child such that they talk about the alienated parents as having hurt “us”. The general view is that children in such families are likely to develop a variety of pathological symptoms.

These include, but are not limited to: splittings in their relationships, difficulties in forming intimate relationships, a lack of ability to tolerate anger or hostility with other relationships, psychosomatic symptoms, sleep or eating disorders, psychological vulnerability and dependency, conflicts with authority figures, and an unhealthy sense of entitlement for one’s rage that leads to social alienation in general. Evidence that alienation has occurred include that both Cruz and Daisy are lacking in ambivalent feelings of their parents? (Sic), which is what would be expected in children their age.

The majority of people will have the ability and tendency to view both positive and negative aspects of another person. In this case, Daisy and Cruz expressed only negative sentiments about their mother and positive ones about their father - a clear indication of alienation and alignment. In addition, they do not appear to be feeling guilty about their negative

view of their mother and Daisy has reportedly become quite rude to her mother, further evidencing alienation. Daisy also has expressed concern in the past about her mother’s drinking and smoking, and it is queried whether these were concerns expressed by Mr. Renzetti rather than concerns independently identified by a child. Alienated children often utilize “borrowed scenarios” - that is, identifying concerns expressed by others as concerns of their own.

It is actually believed by the undersigned that the allegations of abuse made by the children in this case have been efforts at alignment and misalignment with their parents, as each parent has expressed concerns about abuse, rather than based on reality. It was also noted that both Daisy and Cruz became quite uncomfortable talking about their mother during their interview, either asking to end the interview or stating they did not want to talk about her.

This raises the question of whether they were trying to avoid having to answer questions they do not have real answers to, such as why they do not want contact with their mother.

Another sign of alienation is when the campaign of denigration extends to other family members, and it is clear in this case that Daisy and Cruz’s relationship with their maternal grandparents has been greatly negatively affected, despite a previous positive relationship and a lack of any identified reason for their current lack of contact and involvement with their grandparents.” As noted by Garber (2011), “Differentiating among the causes of parental alienation has proven an even more difficult task.

What we know is that parental alienation is seldom exclusively the result of one parent’s malicious actions toward or about the other (Johnston, Walters & Olesen, 2005a,b,c; Lund, 1995). Instead, a child’s disproportionate rejection of one parent in favour of the other often occurs when multiple “hybrid” (Friedlander & Walters, 2010) conditions are met, which together create a sort of perfect storm of relationship dynamics.

These include the child’s exposure to Parent A’s denigration of Parent B, the child’s direct experience of Parent B’s real caregiving deficits (Bala, Hunt & McCarney, 2010; Johnston, Walters & Olesen, 2005b) and the child’s enmeshed and inappropriate relationship within the aligned dad. One recent study observed that “[t]he vast majority of cases referred, whether from the court or the community, were hybrid cases in which some combination of alienation, estrangement and/or enmeshment was operative” (Friedlander & Walters, 2010, p. 100)”.

In this case, the undersigned believes that both parent and child factors are playing a role in Daisy and Cruz’s apparent alienation from their mother and it is highly concerning that Ella and Nate may be involved in an alienating process at the present time as well.

With regard to Ella and Nate, they have not only the messages being conveyed by each parent about the other parent to contend with, but they have the added element of witnessing their older siblings alienation (sic) and this could contribute to them questioning their own relationship with their mother and erring toward to the attitudes and behaviours of their older siblings”. With regard to Daisy and Cruz, it is the assessor’s opinion that Mr. Renzetti has not acted in an appropriate manner when dealing with issues/concerns related to Ms. Anderson and the children’s relationship with their mother.

Although it is not likely a conscious process of alienation, it does not appear that Mr. Renzetti has sufficiently supported the children’s relationship with their mother. This was a sentiment expressed by collateral sources as well.” FORMULATION - CUSTODY [77] According to the literature referenced above, alienation rarely happens solely as a result of the aligned parent ’ s conduct. Other factors such as estrangement may also play a role. That is what Ms. Power concluded.

It was her opinion that the Applicant ’ s own behaviours “ more than likely contributed to the children being alienated from her ” . (Pg. 94) When she appeared for the Binding Settlement Conference she said that the Applicant ’ s conduct, including engaging in a personal relationship with a man soon after the parties ’ divorce - a person that Daisy and Cruz in particular apparently did not favour, contributed to the estrangement of Daisy and later Cruz.

Also, while the Applicant did not abuse alcohol, the introduction of any alcohol in her home was a change for the children and possibly a contributing factor. [78] There is evidence to support Ms. Power ’ s conclusion regarding alienation and estrangement. I find that the Respondent was not sufficiently supportive (if supportive at all) of the Applicant ’ s relationship with Daisy and Cruz and failed to be sufficiently authoritative with his children when there were early signs that they were resisting returning to the home of their mother.

Rather than be assertive with them and make it clear to them that they were to return to the home of their mother, he permitted and intentionally or subconsciously encouraged them to stay with him. He saw his behaviour as supportive of the children. I see his behaviour as insufficiently supportive of the children ’ s relationship with their mother.

[79] There were also signs that he consciously or subconsciously led the children to believe that their mother was the cause of the divorce (she was the Petitioner), that she preferred other men over their father (she was the first of the two to introduce a “ significant other ” to the children after the parties separated even though both, subsequent to their separation, entered new relationships), that she cared less about the children ’ s concerns than he (O ’ Neil, J. referred to the Applicant spending more time on retraining than was the case prior to the parties ’ separation and having an inter-personal relationship with someone other than the Respondent and the children) and that she had somehow changed.

If he didn ’ t lead the children to believe that their mother could not be trusted he at least reinforced their belief that she could not be trusted by videotaping the transition of the children to her care and recording her conversations with Daisy on a number of occasions when the Applicant tried to persuade Daisy to leave the Respondent ’ s van and stay with her. It should be noted that Daisy herself picked up the practice of recording conversations with her mother. [80] I do not believe that the Respondent has yet to appreciate the damage that he has done.

Throughout the Binding Settlement Conference he tried to portray himself as nothing other than a caring father who is supportive of his troubled children. Too often he literally pointed the finger at the Applicant and pleaded with her to change her behaviour. [81] I ’ ve considered the reasons that I was given for Daisy ’ s decision and subsequently Cruz ’ s decision not to see their mother. Those reasons included: 1. That the Applicant didn ’ t play with them like she used to (she was too busy for them); 2. That they didn ’ t like her then partner (referring to her previous companion, not Mr. Walter); 3.

That she was “ always ” out and always drinking and smoking (Cruz is alleged to have said that she did this “ more than a million times ” ); 4. That she stopped going to church; 5. That she made Daisy care for the younger children (something that the Respondent has done for the past year); and 6. That she was physically abusive. [82] There is a very small element of truth to each of these allegations but overall it would be a mistake to accept these complaints as an accurate portrayal of the Applicant or the way that she treated the children.

They are examples of a false reality that the two older children have come to believe. [83] Further evidence of this “ false reality ” can be found in the words of Cruz to Madame Marquis after Cruz refused to speak with his mother on the third day of the Binding Settlement Conference. In addition to telling Madame Marquis that he did not want to see his mother he gave as his reason “ because of what she did to us the past three years ” (or words to that effect). Madame Marquis said she asked Cruz to identify what it was the Applicant did to “ them ” and he said that he couldn ’ t remember.

He also said that his mother “ hates all of us ” and that she “ lied to all of us ” . When asked if she had lied to him specifically he said that she had not but that she had lied to Daisy. He then said “ all she wants is money ” and “ she ’ s only thinking of herself; her, her, her ” . I was not presented with any evidence to back up any of Cruz ’ s statements about his mother.

I also found some of those statements to be rather peculiar statements coming from a young boy of 11 years unless those are statements that had been made to him. [84] Also during the Conference, Madame Marquis gave evidence that on one occasion when she was assisting the Applicant to place Daisy in her vehicle on the school grounds, Daisy complained loudly that her mother hurt her while putting her in the car.

Yet, when Madame Marquis had much the same physical contact with Daisy as did her mother moments before (while helping her with her seatbelt) Daisy offered no complaint or objection. [85] For the reasons that Ms. Power has tried to explain it would seem that Daisy and Cruz have come to believe that as between their mother and their father, their father is the victim. They have aligned themselves completely with him. They are all too willing to find fault in their mother and are completely unforgiving of those faults that they perceive. Furthermore, they seem to see no flaws in their father. [86] Ms.

Power said in her report that she believes that the Respondent ’ s alienating behaviour was likely not conscious. She also said, during the conference, that she believed that the parties probably contributed equally to the alienation and estrangement of the children. In my review of the actual evidence and having spent a good part of three days with the parties I have concluded that Ms. Power was being too diplomatic. While the Applicant may be passive and perhaps dependent (something that she is working on through therapy) the Respondent has been and continues to be narcissistic and manipulative.

Whether he is conscious of his behaviour or not, I do not know. However, I consider him to be far more responsible than the Applicant for the situation in which the family finds itself

today. [87] Having come to this conclusion the next step is to determine whether a variation of the CRO is appropriate and if so what new order would be in the best interests of the children taking into account the conclusions that I ’ ve reached with respect to the changes that have occurred since the granting of the CRO. [88] The Applicant in her affidavit and the Respondent in his Parenting Statement both indicated that they wanted primary care of all four children.

The Applicant believes that so long as Daisy and Cruz remain in the care of their father there is little chance that she will again have a relationship with them. As for Ella and Nate she said in her affidavit sworn September 14, 2012: “I am gravely concerned for the psychological and emotional health of my two youngest children. As their 2 older siblings have already been alienated from me, I fear this will happen to Nate and Ella.

As stated in the Custody and Access Assessment provide to the courts (sic) by Heather Power, “it is certainly concerning that Ella and Nate will follow suit”. (see page 94, bottom of paragraph 2, of the Assessment).” [89] In his Parenting Statement the Respondent said “ I seek custody of all four children ” and said that with respect to access by the Applicant he wanted an order to reflect “ Reasonable access ” and “ The Applicant to have access as agreed from time to time between the parties. ” In the course of the Binding Settlement Conference the Respondent indicated a willingness to keep things the way they are but have the two older children attend counselling as recommended by Ms.

Power. He also said that he would continue to encourage the two older children to spend time with their mother. The Applicant was not receptive to that proposal. She did not trust the Respondent to encourage the children to have a relationship with her. There are reasons for her skepticism. [90] To this point in time the CRO has never been altered. The children are supposed to be in the care of their parents on a week-on week-off basis. When Daisy stopped going back to the home of the Applicant the Respondent did not initiate an Application to Vary.

Then, when Cruz stopped returning to the home of the Applicant, he still did not initiate an Application to Vary. When the Applicant filed her own Application to Vary the Respondent did not file a Response. To this day he ’ s made no application of any kind to vary the CRO and yet he does not comply with it. He ’ s also not complied with the child support provisions of that order.

On one of the earlier occasions when the parties appeared before me for a Conference (in November 2011) I told them that the CRO was presumed to be correct until it was varied and until such time that it was varied that order should be followed. It wasn ’ t. [91] In her report Ms. Power indicated that controversy exists in the literature regarding appropriate recommendations for families where children have been alienated. Some researchers have suggested that contact with the alienating parent (in this case the Respondent) be severed where others suggest a more cautious approach. Ms.

Power said in her report and verbally during the conference, when determining how to proceed in a case like this one must consider the children ’ s current status and how any potential new custody arrangement may affect them. [92] Although Ms.

Power was of the opinion that the Applicant has the “ ability and willingness to effectively parent her children ” and “ seems to have an understanding of the children ’ s difficulties and has engaged in efforts to help ameliorate the situation ” she was concerned that if the Court was to order that Daisy and Cruz be placed in the Applicant ’ s care, one or both of them may run away.

She was also concerned that even if they did not run away, such an order may be counter productive because it might reinforce the children ’ s negative views of their mother and that would cause still more psychological harm to the children. [93] The Court views what the Respondent has done to alienate Daisy and Cruz from their mother as psychologically and emotionally harmful. It would not be an exaggeration to refer to what he has done as psychological abuse. It remains to be seen whether the harm caused is irrevocable.

Nevertheless, Daisy and Cruz appear to feel safe with their father and, aside from the damage caused to their relationship with their mother, they appear to be functioning well in other aspects of their life. They are doing well in school and physically they appear to be healthy. The Respondent is meeting their basic needs. [94] The last thing the Court wants to do is to impose an order that would cause still more harm to these children. Ms.

Power indicated that aside from granting custody of Daisy and Cruz to the Applicant, other options include having the Respondent receive therapy even though she acknowledged that “ alienating parents tend to experience little benefit from therapy. Often lacking the capacity

for self-insight, they are generally unable to acknowledge their own personal distress or to see that they have contributed to the problem. To themselves, and often to others, they appear to be in control, so their motivation for change is minimal (Garrity and Barris, 1994, Pg. 94). ” (Pg. 85) [95] Another option she suggested considering was family therapy for the children and the alienated parent (the Applicant).

While that seems to be an almost obvious option, it should be noted that the children previously participated in individual therapy and it was reported that they began to find it problematic and therefore that counselling came to an end. [96] Ms. Power also indicated that it is sometimes unfortunately the case that there is nothing that can be done. She concluded the alienation

section of her report as follows: “In this case, the undersigned feels that there is little choice but to permit Daisy and Cruz to remain in the primary care of their father, as altering custody at this point is likely to cause more psychological harm for these children. They have managed to obtain some stability in their lives after years of chaos and are reportedly coping well at school. Removing them from their current situation would increase chaos which could lead to further psychological harm.

In saying that, the undersigned does believe the children would benefit from attempting to re-establish their relationships with this mother and that family therapy is a worthwhile endeavour . However, it will be necessary for Mr. Anderson to support such an effort and thus he could also benefit from counselling in order to help him get over his own feelings of animosity toward Ms.

Anderson, to realize that a relationship with both of their parents is ideal, and to realize that his own behaviours have contributed to alienation of these children from their mother and, at the very least, that he has not sufficiently encouraged a relationship between the children and Ms. [Anderson]. Moreover, it will be prudent for Mr. Renzetti to gain these realizations so that any potential alienation of Ella and Nate that may be occurring can be stopped before it permanently affects their relationships with Ms. Anderson.”(emphasis added) (Pg. 96) [97] Ms.

Power considered whether joint decision-making authority was still viable and noted that the parties have extreme difficulty communicating effectively with each other and agreeing on matters that relate to the children. [98] As for the physical custody of the children she believed that it would be in the best interest of all of the children to have contact and a relationship with both parents even though at this time is it doesn ’ t seem viable to place Daisy and Cruz in their mother ’ s physical custody.

She nevertheless was still of the opinion that Ella and Nate should share their time between the homes of their parents. That said, she was alive to the possibility that they too might be alienated against their mother and therefore she recommended that the Applicant have primary care of the two younger children with access to the Respondent on specific occasions. [99] Her final recommendations are lengthy and I will simply paraphrase them. She recommended: 1. That the parties share custody of all four children as far as it relates to major decisions.

They would resort to mediation if a consensus could not be reached. 2. The parties would have no physical contact with each other but would communicate via the phone in the event of an urgent situation or by (family assistance) computer programs such as “ Our Family Wizard ” or other similar tools. 3. Daisy and Cruz would remain in the primary care of the Respondent and Ella and Nate would be in what Ms. Power referred to as a “ shared physical custody arrangement ” albeit in a different form than the current week about arrangement. Holidays and other special events would be clearly specified and shared. 4.

The Applicant would engage (or continue to take

part in) individual therapy as would the Respondent. 5. Both parties would re-engage in co-parenting counselling (separately) to help them learn strategies to address their own issues without involving their children in their conflict; and 6. Daisy and Cruz should participate in individual therapy in an effort to work towards reunification with their mother. CONCLUSIONS AND DECISION -PARENTING

[100] The harm that has been caused to Daisy and Cruz is considerable. I am not prepared to take risks with Ella and Nate. Ms. Power recognized the very real possibility that Ella and Nate could very well be alienated from their mother if steps are not taken to prevent that from occurring.

I do not believe that her recommendations go far enough to protect them from that possible harm. [101] While I sincerely hope that therapy will help the Respondent understand what he has done, the damage that it has caused to this family and why it is so important to try to re-establish a relationship between the Applicant and the two older children, I have also been told by Ms. Power that alienating parents tend to experience little benefit from therapy. [102] I considered granting primary care of Daisy and Cruz to the Applicant but words on paper won ’ t repair their damaged relationship.

I believe that it is likely that one or both children would run away from their mother if they were forced to return to her home and I have been cautioned by Ms. Power that such a remedy may cause yet further psychological harm to them. [103] I considered placing the children in a third party ’ s home (such as another relative). I believe that would be equally traumatic and the risk that they would run from such a home is just as great. [104] There is no simple answer to this dilemma.

It is my hope that the remedy for this sad situation can be found through counselling for the children and their parents. [105] In arriving at my ultimate decision I have taken what Ms. Power would consider to be a cautious approach. The Applicant may very well think I have not gone far enough and the Respondent will believe that I have gone too far. [106] My solution is in no way intended to punish the Respondent. It is designed to protect the children as much as possible and to prevent further harm.

It is also my hope that it will ultimately lead to a renewal of Daisy and Cruz ’ s relationship with their mother. [107] I also hope that in time the order that I am about to grant can eventually be varied so that the Respondent will one day again have more time and a better relationship with Ella and Nate than my order will permit.

That will only happen if he gains greater insight into his contribution to what has happened to Daisy and Cruz. [108] Therefore having already concluded that there have been many changes in the “ condition, means, needs (and) other circumstances ” of the children since the granting of the CRO - notably that Daisy and Cruz no longer have a relationship with their mother and that both alienation and estrangement have occurred - I have also concluded that a variation of the parenting provisions of the CRO are required.

Taking the aforementioned changes in circumstances into consideration and being guided by what I consider to be in the best interests of the children the custody and access provisions being paragraphs 1 and 2 of the CRO are hereby varied as follows: 1. The Applicant and the Respondent will continue to share joint custody of Daisy and Cruz.

Neither party will make any major developmental decisions regarding Daisy or Cruz without the consent or acquiescence of the other party except on an emergency basis in which event they will contact and inform the other party as soon as it is reasonably possible of the nature of the emergency and the decision made. A major developmental decision is any decision which may significantly affect the children ’ s education, change to their religious upbringing, health or medical care or relationship with the other party.

The day to day decisions regarding the care of Daisy and Cruz will be made by the parent in whose physical care they are at the time. 2. The primary residence of Daisy and Cruz will be with the Respondent. 3. The Applicant will have liberal access to Daisy and Cruz at reasonable times, upon reasonable notice to the Respondent, which access will be subject to the wishes of the child or children involved.

I fully appreciate that initially at least it is likely that neither Daisy nor Cruz will willingly go with their mother but it is my hope that with the passage of time and with adherence to the remaining provisions of the Court ’ s order that their relationship with their mother will improve and they will want to spend time with her. When that happens I expect the Respondent to cooperate with the facilitation of such access. If the parties at that time cannot agree on the specifics of that access I would view the change in the children ’ s position with respect to their mother as a change in circumstance as

contemplated by sub- section 17 (5) of the Divorce Act (supra) which would at least open the door to a further variation application. 4. The Applicant will have sole custody of Ella and Nate. 5. The Applicant will have sole and final decision-making authority with respect to Ella and Nate provided however that she will inform the Respondent of any major developmental decision that has to be made with respect to either of those children (as “ major developmental decision ” is defined above) as soon as reasonably possible. 6. Ella and Nate ’ s primary residence will be with the Applicant. 7.

The Respondent will have limited but unsupervised access to Ella and Nate subject to the remaining provisions of the Court ’ s order. Specifically, the Respondent will have access to Ella and Nate each Sunday from 12:00 noon until 5:00 p.m.. The Applicant will be responsible for delivering the two children to the residence of the Respondent by 12:00 noon each Sunday and the Respondent will be responsible for returning the children to the residence of the Applicant by 5:00 p.m. each Sunday.

When delivering the children to the residence of the Respondent the Applicant will remain in her vehicle and will not leave the curb adjacent to the Respondent ’ s residence until both children have safely entered the residence of the Respondent. Similarly, when returning the children to the residence of the Applicant, the Respondent will remain in his vehicle at the curb adjacent to the residence of the Applicant until he has seen that the children have safely entered the residence of the Applicant. 8.

Both parties will continue to be entitled to receive information relating to all of the children such as school progress reports, medical reports, information regarding their recreational activities and the like. Further, if either party should come into possession of any information relating to the children ’ s health, education, recreational activities and the like which they could reasonably believe was not received by the other party (which under the circumstances is likely to occur) they will make reasonable efforts to share that information with the other party as soon as is reasonably possible.

For further clarity, if either party receives school notices, medical reports, school progress reports or other such information relating to the children which they may reasonably believe was not received by the other party, they will pass on copies of such documentation to the other party as soon as is reasonably possible. 9.

On those occasions when it is necessary for the Applicant and the Respondent to communicate with each other with respect to the children, they will do so by telephone in the event the need to communicate with each other is urgent and otherwise they shall do so by way of e-mail, text messaging or family assistance software. 10. Telephone access between the parties and the children when they are in the care of the other party has been little more than a source of argument.

Therefore, there will be no provision in the Court ’ s order with respect to telephone access, access by way of email, texting or any other means of access other than direct physical access to which reference has already been made in this decision. The Court ’ s order will however include a provision that allows the children to communicate with any of their siblings by way of telephone, email, texting and other such similar methods of communication at reasonable times and for reasonable periods of time should they so wish. 11.

Neither party either in their written material or verbally addressed the issue of parenting/access during holidays and other special events. I believe however that it is important that such provisions be specified. Therefore, in 2012 and each even numbered year thereafter until otherwise ordered Ella and Nate will spend Christmas Eve and Christmas Day with the Applicant and, subject to their wishes, Daisy and Cruz will also be in the care of the Applicant on Christmas Day from 12:00 noon until 6:00 p.m..

Daisy and Cruz will be in the care of the Respondent on December 26 and the Respondent may have the care of Ella and Nate on December 26 from 12:00 noon until 6:00 p.m.. If Daisy and Cruz agree to spend time with their mother on Christmas Day the Respondent will be responsible for delivering them to her residence by 12:00 noon and the Applicant will be responsible for returning them to the residence of the Respondent by 6:00 p.m..

Similarly on December 26 the Applicant will be responsible for delivering Ella and Nate to the residence of the Respondent by 12:00 noon and the Respondent will be responsible for returning Ella and Nate to the residence of the Applicant by 6:00 p.m.. In 2013 and every odd numbered year thereafter until otherwise ordered Daisy and Cruz will spend Christmas Eve and Christmas Day with the Respondent and the Respondent will have the care of Ella and Nate from 12:00 noon on Christmas Day until 6:00 p.m., when they will be returned to the care of the Applicant.

The Applicant will have the care of Ella and Nate on December 26 as well as Daisy and Cruz from 12:00 noon until 6:00 p.m., again subject to their wishes.

12. In 2013 and each odd numbered year thereafter until otherwise ordered the Applicant will have the care of Daisy and Cruz on the Saturday preceding Easter Sunday from 12:00 noon until 6:00 p.m., subject to their wishes, along with Ella and Nate and the Respondent will have the care of Ella and Nate on Easter Sunday from 12 noon until 6:00 p.m. along with Daisy and Cruz. 13.

In 2014 and each even numbered year thereafter until otherwise ordered the Respondent will have the care of Ella and Nate on the Saturday preceding Easter Sunday from 12:00 noon until 6:00 p.m. along with Daisy and Cruz and the Applicant will have the care of Ella and Nate (all day) along with Daisy and Cruz, subject to their wishes, on Easter Sunday from 12:00 noon until 6:00 p.m.. 14. The specific parenting provisions that are to take place on December 24 and 25 and the Easter Weekend supercede the general access provisions contained in paragraph 7 above. 15.

The parent who does not have primary residence of a child on his or her birthday will be permitted three hours of access with them on their birthday with the specific times to be agreed upon by the parties in advance and this provision is also subject to the wishes of Daisy and Cruz. 16. During the months of July and August when the children are not attending school the Applicant may have two weeks of uninterrupted time with all four children (subject to the wishes of Daisy and Cruz) for the purpose of having a summer vacation.

She will notify the Respondent no later than May 1 of each year of which two weeks she wants to have the children for that purpose. 17. The Applicant will continue to take

part in individual therapy in order to examine and address her maladaptive personality characteristics as described by Ms. Power in her report and to assist her in identifying positive and effective disciplinary strategies for the children and to help her address her current relationships, or lack thereof, with Daisy and Cruz. If she hasn ’ t already done so the Applicant will provide her therapist with a copy of Ms. Power ’ s report as well as a copy of this decision and a copy of the Court ’ s order which will be issued subsequent to this decision.

Either with the same or a separate therapist the Applicant will engage in co-parent counselling to learn how to address her own issues without involving their children in the conflict with the Respondent. 18. The Respondent will engage in individual therapy to address his maladaptive personality characteristics as described by Ms. Power in her report to better appreciate the current family conflict, his role in that conflict, how the conflict has affected the chi

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