2023 MBKB 163, 2023 MBKB 163

Date: 20231108 Docket: FD 14-01-09477 (Winnipeg Centre) Indexed as: C.B vs. S.S. Cited as: 2023 MBKB 163 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: C. B. ) Lorraine M. Scollin petitioner, ) for the petitioner ) - and - ) ) S. S. respondent. ) ) ) ) Debra L. Takeuchi for the respondent ) ) Judgment Delivered : ) November 8, 2023 EVERETT J. I. INTRODUCTION [ 1 ] The petitioner (father) and respondent (mother) married on December 20, 2009. [ 2 ] The couple resided in Montreal throughout their married life. Their daughter (A.) was born in 2011.

In August 2012, the mother left their family home in Montreal, on a holiday to see her family in Winnipeg, taking their 9-month old baby daughter with her. The mother never returned home. In spite of extensive efforts, the father did not see his child again until March 2023. II. LITGATION HISTORY [ 3 ] The father commenced legal proceedings in Montreal to regain custody of his daughter in 2013. The proceedings in this matter were transferred to Winnipeg in 2014 at the mother’s request. The case then lingered before the courts in various pre-trial proceedings for eight years before the commencement of this trial.

The trial was originally scheduled to take place June 14 to 17, 2022. Instead, the trial has lasted a year and a half with over 18 days of hearings. [ 4 ] The mother failed to attend on any of the scheduled days in June and the trial proceeded in her absence. The mother’s conduct by not attending the trial was consistent with her conduct since the commencement of the proceedings in 2014, consistently failing to attend case conferences or comply with any directions of the court. [ 5 ] The father travelled from Montreal to be present for the entire proceeding in June.

Throughout his testimony, the father presented as a reliable historian of what had occurred over the past ten years and his persistent efforts to have a relationship with his daughter. He was balanced and fair and took responsibility where appropriate for his

part in the original delay in bringing the matter before the court. He was insightful about his daughter’s needs and aware that a successful reunification with her would require the assistance of an expert in this field. To that end, he had researched the resources in Manitoba and came to court offering the names of two experts for the purpose of reunification therapy.

[ 6 ] Throughout these proceedings, it was clear that the father was putting his daughter’s own best interests before his own. He presented to the court as a caring parent, who has always been concerned about his daughter’s wellbeing. [ 7 ] At the end of this hearing, the court delivered a lengthy decision in which it found that it was overwhelmingly in A’s best interest to have a relationship with her father.

Verna Sullivan was appointed as the reunification therapist and a detailed plan for reunification therapy was pronounced in the form of an order. [ 8 ] The order required the mother to cooperate with the therapy by scheduling and attending appointments for both herself and A. She ignored the court’s orders completely, failing to

schedule or attend any sessions. Moreover, she failed to attend court in September for the court ordered review of the therapy. In a last attempt to obtain the mother’s voluntary attendance, the court adjourned to October 19, 2023 for the mother’s appearance. When the mother failed to attend court on that date, the court issued a bench warrant. The mother was brought to court on that date in the custody of the sheriffs. [ 9 ] Throughout the past year and a half this court has delivered a number of decisions dealing with the issues as they arose.

While the court will not repeat all of its previous findings and conclusions from these decisions, these findings of fact, conclusions and pronounced orders are intended to form part of this decision. [ 10 ] Suffice it to say, that since the court’s reunification order of June 16, the mother has been in contempt of the majority of the court’s orders, ignoring the court’s directions and orders that were intended to allow father and daughter to develop a relationship.

As a result, the orders of the court since finding that it was in A’s best interest to have a relationship with her father, have focused on the mother’s non-compliant conduct and her attempts to undermine and impede the development of the relationship between A. and her father. III. ISSUES [ 11 ] There are now only three remaining issues in this trial. The first, and paramount issue, is the determination of which parenting

schedule put forward by each parent is in the best interest of A. [ 12 ] The second issue is the disposition of the contempt of court charges that remain against the mother arising from her conduct since June 1, 2023. [ 13 ] The third issue is related to various issues concerning child support and costs, and how they should be paid. IV. POSITION OF THE PARTIES FATHER’S POSITION [ 14 ] The father began the trial requesting reunification therapy as a first step, followed by, when appropriate, an order that provided for periods of time of shared parenting to take place during holidays and summer vacations.

During the trial, the father amended his pleadings, to seek a reversal of custody. His plan provided for shared parenting time with the mother utilizing summer vacation and school breaks. The father is relying on the expert testimony of Ms. Sullivan in his submissions that a reversal is the best remaining option with a chance of success for A. and him to develop and form a strong attachment and parental bond.

In the alternative, if the court is not prepared to order a reversal of custody, he suggests a shared parenting plan where his time would coincide with A’s winter and spring breaks, four weeks in the summer and Thanksgiving long weekend.

MOTHER’S POSITION [ 15 ] The mother’s position has been erratic throughout the trial. [ 16 ] Occasionally, she has stated that she has never opposed contact between the father and A. and wants them to spend time together (despite spending years of litigation in this court opposing contact). [ 17 ] Sometimes, she has taken the position that A. does not want to see her father and that A. should be allowed to make her own decision. [ 18 ] At other times, she suggests, in a denial of reality, that the father has never expressed any interest in seeing his daughter. [ 19 ] Despite the confusing stances that the mother has taken, she has finally agreed that there should be parenting time now between father and daughter, but that their contact should take place in Winnipeg, preferably to be supervised by her. [ 20 ] Also at times, the mother has taken the position that the reason for her opposition to the father seeing his daughter was because he was abusive during their brief marriage to both her and A.

The father adamantly denies her allegations. [ 21 ] In an earlier detailed decision, the court has found that these allegations were unsubstantiated.

In reaching this decision, the court relied on, amongst other evidence, the expert evidence of the two psychological reports, obtained by the father at the behest of the mother and the evidence of the reunification expert, who worked with the father during the 17 months of the trial, all of whom indicated no safety concerns regarding the father. [ 22 ] The mother is now attending counselling with Kim Purcell, a therapist whom she had been previously been ordered to see. The court views this as progress, however slight, but it is at the beginning stages. The counselling must continue. V. EXPERT EVIDENCE [ 23 ] Ms.

Verna Sullivan was appointed by the court as an expert in reunification therapy. She was asked by the court to facilitate and assist A. in adjusting to meeting and spending time with her father, with the goal of the father and his daughter forming a healthy

attachment and bond. Ms. Sullivan has provided the court with expert evidence throughout the trial on numerous occasions. The court has reviewed her testimony in prior decisions and will not revisit it at this point, except to point out that her testimony has been consistent and objective throughout the trial. After working with this family for a year and a half, Ms. Sullivan describes a deliberate and intentional effort by the mother to sabotage the reunification of A. and her father that, to some extent, has been colluded in by some members of the maternal extended family. [ 24 ] Significantly, Ms.

Sullivan’s testimony made clear that A‘s own resistance to the reunification efforts with her father were not only unjustified but were undoubtedly as a result of the mother’s coaching and influence. [ 25 ] In contrast, her view of the father is that he has demonstrated patience and caring for A. in the most challenging of circumstances. It was clear to her that the father was able to put his daughter’s needs and best interest before his own. He presented as an insightful parent, who was concerned about his daughter’s wellbeing. In this regard, Ms.

Sullivan opined that the father’s parenting skills were superior to that of the mother. [ 26 ] The mother, in contrast, presented as unable or unwilling to understand the importance for A. of the development of a parental bond with both her mother and her father. The mother has acted in a manner that has been willfully blind to A’s best interests by attempting to thwart and undermine the reunification efforts of the past year and a half. [ 27 ] Ms.

Sullivan’s opinion was consistent with the court’s own findings, based on the evidence and observations of the conduct of the parties over the past year and a half. [ 28 ] Ms. Sullivan testified for the final time on September 22, 2023, after A. had spent the month in Montreal with her father. As a result of the events that had taken place over the summer and throughout the visit, Ms. Sullivan opined that a reversal of custody was necessary to provide A. with a complete separation from the negative influence and manipulations of her mother and other extended family.

Her concern was that it was impossible for A. to develop a relationship with her father so long as she was returning to the influence and manipulations of the mother on a frequent basis. On this issue, the court has evidence of the benefits of a complete separation between A. and her mother, based on the counselling that A. received in Montreal that took place over A’s last couple of weeks in Montreal. At the time, A. was completely removed from the influence of her mother and other extended family.

As a result, A. began to respond positively to the therapy and her behavior towards her father began to change and improve. The court concludes from these positive changes in A., when A. was away from the alienating influences of her mother and extended family, that therapy was able to provide a benefit. A. started to adapt and accept her father and settle into his care. The counselling has resulted in some noteworthy change. This bodes well for the future. [ 29 ] Ms.

Sullivan believes that the only other option to a reversal of custody is for the father to walk away from his daughter and abandon the proceedings, which could also have a damaging effect on A., leaving her feeling rejected and abandoned by her father. It is clear to the court however, that this father is far too committed and loves his daughter too much for that to be an option for him. VI. ANALYSIS [ 30 ] The court has found in its earlier decisions that there is overwhelming evidence that A. is a child who has been intentionally manipulated and influenced by her mother against her father.

The evidence supports no other conclusion. [ 31 ] A’s father has presented a strong case for a reversal of custody. The expert testimony during the trial suggested that alienating conduct, such as the mother is exhibiting, is a form of emotional abuse to a child. The court agrees with this view.

Further, the expert testimony is that a reversal of custody is the best option that the court has left to try. [ 32 ] If the father lived in Winnipeg, or was able to move to Winnipeg, this court would have no hesitation in ordering a reversal of custody, based on his superior insight into his daughter’s needs and his demonstrated ability to act in her best interests.

But the unique circumstances of these facts create serious challenges to what seems like the obvious solution. [ 33 ] Throughout the trial, the mother continued to demonstrate a lack of understanding of the importance of the development of a healthy relationship between father and daughter. She presented as unwilling or unable to comprehend the needs of her child in this regard and the profound damage that her behavior may be causing to her child. This lack of insight has carried on right through to completion of the trial.

The court is of the opinion that, despite the mother paying lip service to her willingness now to facilitate the development of a relationship between A. and her father, the mother may continue to destroy its development.

In short, she cannot be trusted to cooperate even though it is clearly in A’s best interest. [ 34 ] But, despite these disturbing findings about the mother’s conduct, the determination of what is in A’s best interests is complicated. [ 35 ] Usually, a reversal of custody means that a child is being returned to a parent that they know and love, from whom they have become unjustifiably estranged through the actions of their favoured parent. This is not the case here. The father and A. do not have a strong history of former attachment on which they can draw.

Reversal in these circumstances would mean A. leaving her mother, who is really the only parent she has known, to live with her father whom she is just beginning to get to know and with whom she is just beginning to form a bond. This lack of existing attachment between father and daughter is not the father’s fault. The responsibility for the lack of parental bond between father and daughter lies in large part with the mother.

However, it remains a fact with which the court must grapple in determining A’s best interests. [ 36 ] It is also a fact that A’s world since birth has been more sheltered than that of most children. In arriving at this conclusion, the court has considered the following circumstances of A’s life. A. and her mother live in a home owned by her grandfather and shared with her aunt. A. has attended the same small private school all her life. The school has only about 56 students and is owned by her grandfather. A. travels back and forth to school with her mother. When she gets to school, her mother is her teacher.

Her grandfather fills in, when A’s mother is not available, to teach her class or bring her home from school. A. has missed an unjustified number of days from school and frequently arrives late, but neither mother nor grandfather expressed concern about her attendance record and there were

no consequences to her, as there likely would have been at a public school. Her grandfather tutors her if the necessity arises. A. is at a stage of life where her friends are important to her and she appears to have a number of friends, most of whom attend her school. [ 37 ] A. apparently loves her school and is involved in extracurricular activities.

She is choosing to remain at this school rather than moving, as many of her friends are doing, to the much larger public school where she would be exposed to a different and less sheltered environment. [ 38 ] There is no doubt that the move proposed by her father would provide many long term benefits to A. She would hopefully develop a strong loving bond with her father. He has much to offer her as a parent, in many different domains. She has an extended family in Montreal, whom she would get to know and who are eager to get to know her.

She would no longer grow up as an only child, but would have the opportunity to develop a real relationship with her half-brother. Her world would broaden immensely. Most important of all, she would have her father’s love and guidance. [ 39 ] Although a reversal of custody is recommended by Ms. Sullivan, she has acknowledged that reversal is not always successful. The court is concerned that at this point in time, A. will be unable to adapt to the enormity of the move to Montreal. It is a move that will change her life in every way that is important to her right now.

The move involves leaving her home, her school, her friends, her extracurricular activities and her maternal extended family. Significantly, she will have a complete lack of support for the move from her mother and maternal extended family. It would be a difficult move for any child to adapt to, but the complications created by the alienating behavior of the mother and A’s sheltered life in Winnipeg would make it far more difficult for A. to adjust. [ 40 ] Finally, A. so far is steadfast in her resistance to the development of her relationship with her father by spending time in Montreal.

She presents as perhaps more open to spending time with her father in Winnipeg. On this point, there can be no dispute that A. has adopted her position based on the intense psychological and emotional manipulation by her mother. But nonetheless, it remains a factor to be considered. [ 41 ] That is not say that when A. is a little older, and better equipped to handle such a move, that the court would hesitate to order it if things do not change.

In fact, if the mother’s behaviour continues, the move may be inevitable. [ 42 ] But while the court is not prepared to order a complete reversal at this point, the court will be pronouncing an order of joint custody. There will be consultation between the parties for any major decisions involving A’s life. The father will have unlimited access to any of A’s medical, dental and educational records. There will be a continuing parenting

schedule that will provide the father with as much time with A. as possible in these circumstances. He will have up to three weeks of his choosing over the December school break, two weeks at Spring Break and four weeks in the summer break. In addition, he has the option of any long weekend that he wishes to exercise. The exact dates for these times will be determined by the father based on his schedule. The mother will be advised of same no later than 14 days in advance. The order for renunciation therapy will continue. VII.

CONTEMPT DISPOSITION [ 43 ] The obvious concern for the court in denying a complete reversal at this time, is that the mother will continue to sabotage the developing relationship between A. and her father. The mother is currently pending before the court for acts of contempt arising from the court’s order that was pronounced on May 31 and June 1, 2023. On those dates, the court pronounced an order that A. was to spend the month of August in Montreal with the father. In preparation for the visit, it was further ordered that A. would attend sessions with Ms.

Sullivan, where she would have FaceTime visits with her father to prepare for their time together in August. An order of costs against the mother was also pronounced, and a repayment

schedule set with the consent of the mother. [ 44 ] A. did not attend any of the sessions as ordered. The court concludes from the mother’s conduct since that order, that she never intended to take A. to her therapy, nor did she intend to allow A. to spend the month of August with her father, or pay the costs to which she consented. [ 45 ] The mother’s efforts to stop the trip from happening culminated on August 1, the date that the father was to pick up A. and take her to Montreal. A hearing was scheduled for the date of travel in anticipation of the mother’s non-compliance with the order for travel.

When the mother arrived at court that morning, it became clear that the mother did not intend to comply with the order. After questioning, the court learned that A. was at her uncle’s home outside the City of Winnipeg. Apparently, the uncle knew nothing about the fact that his niece was supposed to be flying to Montreal that day, or that A’s mother was in contempt of the court’s order. As a result of the mother’s actions, the court had to involve the police to ensure that A. was successfully transitioned to her father’s care.

The court lifted the mother’s suspended sentence for previous contempt and she was incarcerated. By the time A. was finally safe in her father’s care, they had missed their flight and they had to overnight at a hotel. As soon as A. was away from her father for a moment at the hotel, she called for help from a stranger, pretending that she was in danger from her father. As a result, the police were called again, this time by the hotel, to sort things out.

It is unclear to the court whether A. actually believed she was in danger from her father as a result of her mother’s influence, or whether she was simply following her mother’s coaching to break away from him as soon as she could. Each possibility is equally concerning. [ 46 ] The court finds that the mother did everything she could to suggest to A., in word and deed, that the pending trip was fraught with dangers. These actions included taking A. to two different doctors in the last few days before the trip, presumably to try to get a medical order of some sort that might stop the trip.

When that did not work, on the day before the trip was to happen, the mother took A. to Child and Family All Nations Coordinated Response Network (ANCR) to have her interviewed, suggesting that she was a child in need of protection from her father.

On that day, in aid of her case, the mother gave false information to ANCR about the father (as she has done throughout these proceedings), intended to damage the father in their eyes. [ 47 ] As a result of the mother’s interventions, when A. was finally safely in Montreal with her father, the holiday began in Montreal with Child Protection Services arriving at the father’s home to do a wellness check. [ 48 ] It is likely that the circumstances of August 1 will have a profound effect on A. as she grows up. The undisputable facts are that

the mother was the sole architect of the dysfunction and chaos that her 11-year-old daughter was subjected to on that day. But the mother has yet to express a word of regret or responsibility for her actions.

She presents as completely unaware that it was her own actions that were destructive that day, not the actions of a father who simply wanted to spend time with his daughter during her summer holidays. [ 49 ] In court recently, the mother, grandfather and aunt all opined that A. had been traumatized by having to visit with her father in Montreal. [ 50 ] The entire family seemed unable to understand that if indeed A. was “traumatized” by the events surrounding the visit, it was not the fault of the father.

The fault lies with the mother and some members of the extended family, whose unrelenting message to A. was that she was entering enemy territory, when she was simply going on a vacation to her father’s. Much of any distress suffered by A. could have been prevented by the mother and her family simply accepting that A. was going on a vacation to visit her father and supporting her in doing so. [ 51 ] Upon her release from jail, the court asked the mother if she would now comply with court orders for visits. She refused to give the court a clear answer.

This refusal to assure the court that she would now begin to comply with court orders was of particular concern. It suggests to the court that the mother’s recent incarceration for contempt has not resulted in a real change of attitude towards compliance with the court orders. [ 52 ] In considering the appropriate disposition of these acts of contempt, the court views the profound effect of the mother’s conduct on A. as an aggravating circumstance. Ms. Sullivan has testified regarding the effects on a child of alienating behaviour.

The research shows that these long term effects include difficulties in developing relationships as an adult, problems with self-esteem, attachment and addiction issues and a myriad of other psycho-social problems. The likely emotional damage to A., as a result of the mother’s behavior, cannot be overstated. [ 53 ] Also aggravating, is the fact that these current acts of contempt were committed while the mother was on a suspended sentence for prior contemptuous behaviour.

The court is of the view that based on the continuing contemptuous conduct of the mother, the seriousness of these events and the harm to her child’s wellbeing caused by the contempt, that a period of incarceration is again necessary. [ 54 ] The court knows that incarceration is a consequence that must be used as a last resort in custody cases for many reasons but in particular, because of the effect incarceration of a parent will inevitably have on the child. [ 55 ] It is important to stress though that the mother is in complete control of her own incarceration.

If she complies with the court’s order, then she will not go to jail. It is the mother, by her continuing contemptuous conduct, that has left the court no other option but a jail sentence. If her child suffers distress due to her mother’s incarceration, the sole responsibility for that distress lies with the mother. [ 56 ] As a result, the court pronounces a sentence of 90 days to be suspended. The mother is once again in charge of her own destiny. If she complies with the orders of the court, the sentence will remain suspended.

If she does not, the suspension will be lifted. [ 57 ] The mother alone will be responsible for the effect that her incarceration will have on A. All she needs to do is to allow her daughter to develop a loving relationship with her father and the sentence will remain suspended. [ 58 ] In addition, there will be costs against the mother on a solicitor client basis, plus disbursements for the 6½ extra days of court time that was necessitated by the mother’s conduct. The court is aware that solicitor client costs are to be reserved for the most egregious of cases. This is such a case.

The continuing contempt of the mother over the past year and a half of trial, and her non-compliance with the court’s directions since the proceedings began, in the court’s view, justifies the imposition of these costs. [ 59 ] Most importantly, the damage that the mother has inflicted to the parental bond between A. and her father, and their resulting lost years together, is immense.

Those years cannot be regained by father or daughter. [ 60 ] Thus far, no consequence that the court has imposed has been successful in meeting both goals of obtaining the mother’s compliance with the court’s orders and preserving the integrity and reputation of the court. Hopefully, these consequences will deter the mother from her behaviour in the years to come, allowing the father and his daughter finally to form the healthy and strong relationship that is clearly in A’s best interests. [ 61 ] Any remaining issues concerning child support or costs may be spoken to. _________________________ J.