IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20210201

Docket: 10-1037 Registry: Victoria

Between:

And:

Sarah Mercedes Ghosh

Brandon Nelson Regan Leudke

Claimant

Respondent

Before: The Honourable Mr. Justice Punnett

Reasons for Judgment

Ghosh v. Leudke Page 2

Introduction

1. The claimant in her application filed July 28, 2020, sought orders suspending the respondent’s parenting time with their then 14-year-old son followed by supervised parenting. Subsequent events led to the claimant’s September 9, 2020 application for a protection order.

   
   

   Background

   
   

2. As I noted in my reasons last September this is a high conflict and long running family file. The child of the parties is 15 years of age and was born on December 1, 2005. The parties separated in January 2010, approximately four years after his birth. The litigation commenced in March 2010. The trial ran for 16 days in the spring of 2012. There have been at least 26 court orders made after trial. The parties have been engaged in litigation over parenting now for 10 years. The material filed by the parties over the history of this litigation is voluminous.

   
   

3. The background is found in the unreported trial decision of Fitch. J (as he then was) released on February 21, 2013 and my unreported oral reasons of September 1, 2016, July 12, 2018, February 14, 2019 and written reasons released January 22, 2020 and indexed at 2020 BCSC 74. I will not repeat what has already been addressed unless necessary in today’s applications.

   
   

4. After the trial, Fitch J. ordered that Finn was to reside with his mother in Vancouver B.C. The order also addressed in detail the parenting time of the respondent and the how the parties were to communicate and deal with each other over parenting matters. Justice Fitch at paragraph 29 stated:

   
   

   In my respectful view, there is no realistic hope, at this particular point, that Sarah and Brandon would be able to work together co-operatively. I think it is almost inevitable that, in the absence of a clear, highly structured and stated order of the kind I propose making, conflict and intense disagreements would arise quickly and over every conceivable issue.

   
   

5. Unfortunately, such disputes arose. On August 13, 2016 the respondent failed to return the child when required insisting on a “parenting meeting” between the

   Ghosh v. Leudke Page 3

   
   

   claimant, the respondent and the child. This marked the beginning of the post-trial struggle to have Finn reside with him, instituted by the respondent. He has pursued that end ever since.

   
   

6. On August 17, 2016 Mr. Justice Johnston varied the order of Mr. Justice Fitch because of the respondent’s failure to return the child:

   
   

   Pursuant to s. 183(3)c(i) of the Family Law Act, this Court orders that any police officer, including any R.C.M.P. officer having jurisdiction in the Province of British Columbia, who is provided with a copy of this Order is directed to enforce the terms of the parenting time set out in the order.

   
   

7. On August 23, 2016, the claimant applied ex parte for an order suspending parenting time by the respondent or in the alternative that any parent time be supervised. On August 23, 2016 Hyslop J. suspended the parenting time of the respondent until the application could be heard. The respondent’s cross-application sought various orders facilitating “co-parenting”.

   
   

8. On August 26, 2016, I made an interim order preventing in-person parenting by the respondent pending reasons for judgment. On September 1, 2016, I delivered oral reasons for judgment and ordered professionally supervised parenting time. From September 2016 until February 22, 2019 the respondent’s parenting time was supervised. On February 14, 2019, I made several orders, not without some trepidation, removing the need for supervised parenting time and restoring the order of Mr. Justice Fitch respecting unsupervised access and telephone access. The respondent reluctantly consented noting that otherwise their son would never see his father given the lack of contact occurring when the parenting time was supervised. The unsupervised parenting time for the Respondent was to commence on Friday, February 22, 2019 at 4:45 p.m.

   
   

9. Unfortunately, problems arose almost immediately. On May 19, 2019, the claimant sought an order restoring supervised parenting permanently or an interim basis.

   Ghosh v. Leudke Page 4

   
   

10. The allegations of the claimant respecting the conduct of the respondent were similar to those alleged throughout these proceedings. Specifically:

    The following has occurred since supervision has been removed:

    1. The Respondent is now doing the following during the Claimant’s parenting time, in clear breach of Mr. Justice Punnett’s court order of 14/FEB/2019:

       1. Instructed Finn to argue with the Claimant to change the finalized parenting time schedule, including Easter Weekend and other weekend periods Mr. Leudke has repeatedly aired grievances about;

       2. As he did during the Pre-Supervision Period, Mr. Leudke again claims Finn “needs” and “wants” certain things (i.e. changes to the parenting time schedule) and then causes no end of trouble drawing Finn into his campaign; once again Mr. Leudke demonstrates that he is unable to simply follow the orders of the court and be done with it;

       3. Advised Finn that there are ongoing court proceedings and that Finn’s voice is important in terms of influencing the court and the judge’s decision;

       4. Has been advising Finn that Mr. Leudke is not allowed to talk about certain matters with Finn, but then Mr. Leudke proceeds to talk about them anyways;

       5. Told Finn where he is to sit in his room in Vancouver, and not to sit in the bean bag chair Christmas gift the Claimant bought for him;

       6. Told Finn to not sit on certain prominent chairs at his school (i.e. not to sit on bean bag chairs). Finn has informed the Claimant that there is a relaxation room full of such chairs at his school;

       7. Called Finn a “hunchback,” and then told him to perform spinal stretches on his back all throughout the day during the Claimant’s parenting time (Finn has since been examined by Dr. Arora in this regard and Dr. Arora confirms Finn’s posture is good and that he has no concerns in this area);

       8. Text messaged Finn repeatedly while he is in class;

       9. Text messaged Finn repeatedly after Finn’s bedtime during the Claimant’s parenting time;

       10. Text messaged Finn instructions - including a direct order to “get down and give me 10 minutes!” - to do stretches to address his alleged posture or spinal issues;

       11. Tells Finn what types of activities he should and should not engage in during the Claimant’s parenting time, including:

           Ghosh v. Leudke Page 5

           
           

           going to the movies, outdoor activities, and extra-curricular activities such as tap-dancing and fencing;

       12. Discouraged Finn from attending planned events the Claimant and her husband, Mr. Andy Thompson (“Andy”) causing Finn to cancel his plan of seeing a much-anticipated movie with them by abruptly saying he should spend time outside instead;

       13. Told Finn to get all of his homework done during the Claimant’s parenting time in one night rather than allowing any of Finn’s homework time to span over the course of the weekend as arranged by his school’s process;

       14. Offered a bribe (“reward”) of money to Finn if Finn got all of his homework done during the Claimant’s parenting time, saying he would be proud if Finn does this, and described it as a good habit to get into, putting immense stress on Finn during the Claimant’s parenting time;

       15. Has undermined Finn’s interest in school by suggesting the school does not allow him the time and space to be “creative,” despite the fact that Finn’s school is highly creative, and that Finn has a very robust extra-curricular life with a wide variety of fun activities that he had been greatly enjoying.

       16. Mr. Leudke has used a collaborative song-writing process to inappropriately communicate with Finn, directly or indirectly, about issues of high conflict between Finn’s parents, including who Finn should take sides with in the dispute, dissatisfaction with life (or a living situation), and identification of an “enemy”.

       17. Mr. Leudke has strayed far from “simply” referring Finn to see his school counselor in relation to topics Mr. Leudke is forbidden from discussing with Finn. Instead, Mr. Leudke is actively coaching and pressuring Finn about what he should say to the school counselor and when.

           
           

11. The matter came before the court on May 21, 2019, at which time an interim order was made pending receipt of a Views of the Child. The order was:

    
    

    1. That the Order of Mr. Justice Fitch dated September 13, 2013 and Mr. Justice Punnett dated February 14, 2019 be varied on an interim basis pending the application of the Claimant dated May 14, 2019 being heard by this court, as follows:

       1. That the Respondent be prohibited from any communication with Finn via text, e-mail, social media, Internet, or any other form of unsupervised non-telephone communication.

       2. The Respondent’s telephone calls with Finn will be supervised and on speakerphone in accordance with the guidelines set out in the order of Mr. Justice Punnett dated September 1, 2016.

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       3. Other than the parenting time each second weekend, the Respondent will have no extended holiday parenting time with Finn.

       4. There shall be no reference, implied or otherwise, in direct, or indirect conversations with Finn by the parties or

          Mr. Thompson, or anyone in their households that Finn’s privacy has been invaded in any fashion.

       5. If there is any dispute about scheduling parenting time, the Claimant may make the decision in dispute, and the Respondent will engage in no further discussions, telephone calls, or emails, regarding the matter.

       6. The parties will exchange updated affidavits by July 15, 2019.

       7. There is to be a Views of the Child Report (“the Report”) prepared, subject to the Respondent’s ability to pay for it, the cost being solely that of the Respondent.

       8. If the parties are unable to agree as to the individual who is to carry out the Report, they are at liberty to apply.

       9. Leave is granted for the late filing of Mr. Leudke’s Response and supplementary affidavit.

    
    

12. The matter was adjourned to Scheduling to set the hearing for the assize week of July 22, 2019.

    
    

13. The matter came before the court on July 17, 2019 for directions respecting the Views of the Child Report. A Views of the Child Report was never obtained because as I found: “[t]he process has been undermined by the respondent and his agenda to have shared parenting. The process for a Views of the Child has been tainted by the conduct of the respondent.”

    
    

14. The claimant filed a new application on August 27, 2019 for the following relief:

    1. That the Claimant have the sole parental responsibilities pursuant to section 41 of the Family Law Act as follows.

       1. making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

       2. making decisions respecting where the child will reside;

       3. making decisions respecting with whom the child will live and associate;

          Ghosh v. Leudke Page 7

          
          

       4. making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

       5. making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

       6. subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health- related treatments for the child;

       7. applying for a passport, license, permit, benefit, privilege or other things for the child;

       8. giving, refusing or withdrawing consent for the child, if consent is required;

       9. receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

       10. requesting and receiving from third parties health, education or other information respecting the child;

       11. subject to any applicable provincial legislation,

           1. starting, defending, compromising or settling any proceeding relating to the child, and

           2. identifying, advancing and protecting the child's legal and financial interests;

       12. exercising any other responsibilities reasonably necessary to nurture the child's development.

    
    

15. The claimant submitted the turmoil generated by the respondent in his execution of what he perceives as joint parenting was harming the child.

    
    

16. The application was heard September 6 and 13, 2019, with reasons for judgment issued January 22, 2020.

    
    

17. In those reasons, I stated:

    
    

    [30] I am satisfied a reduction in opportunities for disruption and disputes is necessary and in the best interests of Finn. I am also satisfied joint parenting is not achievable and not in Finn’s best interests. As a result, I order that the claimant is to have the primary and ultimate decision-making authority generally in relation to Finn, with respect to all matters set out in s. 41 of the Family Law Act, including travel, with the claimant to consult the respondent regarding any major decisions affecting Finn. I dismiss the application for a fine to be imposed in the matter proposed by the claimant.

    Ghosh v. Leudke Page 8

    
    

18. On July 28, 2020, the claimant filed an application seeking the following relief:

    
    

    1. That the Claimant have leave of the court to proceed with this application;

    2. That this application be heard on a short leave basis;

    3. That Dr. Martin Davidson be directed to provide a Statement of Fact as it relates to the Child, Nelson Finn Ghosh-Leudke (“Finn”);

    4. That the orders dated February 14, 2019, May 21,2019, and January 22, 2020, as drafted by Val Hemminger, counsel for the Claimant be entered and filed, and that the signature of the Respondent, Mr. Leudke, with respect to the approval as to the form of those orders and any future orders be dispensed with;

    5. That the Orders of Justice Fitch dated September 13, 2013 and Mr. Justice Punnett dated January 22, 2020 be varied as follows:

       1. That the Respondent’s parenting time be suspended until this application is heard, and, in any event, for a period of no less than six weeks;

       2. That upon the Respondent’s parenting time being reinstated, that the Respondent’s parenting time be professionally supervised until June 30, 2023, when Finn graduates from high school or for another length of time that this court deems appropriate; such supervised parenting time to occur in Victoria at the cost of the Respondent, with 50% of that cost, up to a maximum of $100 per month, to be reimbursed by the Claimant upon submission of receipts to the Claimant, such supervisor to be TS Consulting Services or another professional supervisor chosen by the Claimant.

       3. In the event that the court orders a resumption of unsupervised parenting time, that such unsupervised parenting time shall be limited to no longer than 24 hour period in a two-week period.

       4. In the alternative, any other modifications to the parenting arrangements that the court deems appropriate in these circumstances.

    6. That the Respondent be strictly prohibited from receiving, seeing, or harbouring Finn during the Claimant’s parenting time, and if the Respondent does receive Finn, see Finn, or harbour Finn during the Claimant’s parenting time, that any police officer, including any RCMP officer having jurisdiction in the Province of British Columbia, who is provided with a copy of this order, is directed to enforce the terms of the Claimant’s parenting time as ordered by this Court pursuant to section 183(3)(c)(i)of the Family Law Act.

    7. If the Respondent fails to comply with the terms of this Order as to the Claimant’s parenting time and the order that the Respondent not receive, see, or harbour Finn during the Claimant’s parenting time in contravention of this Order, a police officer having reasonable and probable grounds to believe that the Respondent has contravened a term of this order made under this part is directed to arrest the Respondent; pursuant to section 231 of the Family Law

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       Act, the Respondent may be brought before the court to show why an order for imprisonment should not be made.

    8. And such other relief as this order may deem just and meet; and

    9. Costs of this application.

    
    

19. On July 30, 2020, I adjourned the matter to August 27, 2020. On August 27, 2020, the matter was further adjourned and then proceeded on September 21 and September 22, 2020. However, in that interval on September 9, 2020, the claimant brought an application seeking inter alia to

    suspend all parenting time by the respondent and contact by him with the child or through third parties. The application was precipitated by the child running away from the claimant’s home in Vancouver on September 5, 2020 and being found at the home of Robert Molnar in Victoria, a short walk from the respondent’s home. Mr. Molnar is a friend of the respondent and has attended court with him. They exchange notes and engage in discussions during the hearings.

    
    

20. A protection order was issued on September 9, 2020 suspending the respondent’s parenting time to expire upon completion and judgment of the applications set for hearing the week of September 21, 2020.

    
    

21. At the September hearing the parties were ordered to provide authorities for their respective positions. They have now done so, although the respondent also provided some 31 pages of submissions that were not ordered.

    
    

    Issues

    
    

22. At issue is whether the respondent shall have parenting time and if so whether it is supervised.

    
    

23. The respondent however, also in his response, seeks orders that:

    
    

    1. That the Respondent have full parenting responsibilities; or, in the alternative, 50/50 shared parenting responsibilities with the provision to make decisions in dispute.

    2. That Finn, reside primarily with his father, the Respondent, in Victoria, according to his self- identified and empirically supported developmental needs.

       Ghosh v. Leudke Page 10

       
       

    3. That the Claimant have parenting time according to Finn’s preferred schedule, alternating weekly, and subject to change by Finn to accommodate his chosen career path in the arts."

    4. That Finn be permitted to be educated according to his views, preferences and needs, including home and online schooling, college and university courses, according to his demonstrated high level abilities and precociousness."

    5. That the Claimant’s parenting time be suspended until a third party professional psychologist can certify to the court that a she has undergone a successful series of clinical behavioural therapy sessions concluding with an effective treatment of her diagnosed mental illnesses, particularly as they relate to Finn: Paranoid personality disorder; Adjustment disorder with anxiety; Any other professionally recommended psychological treatment.

    6. That the Claimant be professionally supervised in Victoria, at her sole expense, on an interim basis, for a minimum of six weeks and an anticipated maximum of six months, pending the professional recommendation of Dr. Meuser in consultation and coordination with the Claimants’ psychologist.

    7. That both the Claimant and Respondent be permitted to enjoy unrestricted communications with Finn in any medium and manner, without recording, supervision or lay-monitoring."

    8. That the Claimant will be prohibited from abnormal and unreasonable breaches of Finn’s privacy, as preferred and indicated by Finn."

    9. That both the police enforceable court order, and protection order, be rescinded.

    10. That the Respondent have his costs in this event, forthwith.

    
    

24. However, the respondent has not filed a cross-application. Hence the issue of a change of residence/parenting is not before the court.

    
    

    Law and Discussion

    
    

25. The claimant relies on: T.M.N. v. P.J.H., 2020 BCSC 80, C.L.M. v. M.J.S., 2017 BCSC 799, S.M. v. N.E., 2015 BCPC 392, Slogoski v. Mullan, 2015 BCSC 1810, G.W.M. v. W.C.M., 2015 BCSC 1624, S.K.S. v. T.L.B., 2017 BCPC 134,

    B.H.C. v. F.G.J.R., 2017 BCPC 378, and L.A.R. v. E.J.R., 2014 BCSC, 966.

    
    

26. The respondent referred to the following authorities: M.W.B. v. A.R.B., 2013 BCSC 885 39, D.N.L. v. C.N.S., 2014 BCSC 1417 40. D.N.L. v. C.N.S., 2013 BCSC 809 41, K.L.L. v. D.J., 2014 BCPC 85 42, M.W.B. v. A.R.B., 2013 BCSC 885 43,

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    K.L.G. V D.J.T., 2013 BCSC 1684, Gilmour v. Herrick, 2013 BCSC 1591 J.L. v. L.D., 2013 BCPC 201, T.D. v. E.D., 2013 BCPC 135, McNaught v. Friedman, 2013 BCSC 1836, D.J.S. v J.M.D. 2013 BCSC 2302, M.R. v L.J., 2014 BCPC 39, M.R. v L.J., 2014 BCPC 39, Shaw v Shaw, 2014 BCSC 984, S.G. v. M.G. 2014 BCPC 6, D.J.S. v J.M.D., 2014 BCSC 1143, D.N.L. v. C.N.S., 2014 BCSC 1417, D.N.L. v. C.N.S., 2014 BCSC 1417, K.L.K. v. J.G.K., 2013 BCSC 2030, L.A.M.G. v. C.S. 2014 BCPC 172, Hadjioannou v. Hadjioannou, 2013 BCSC 1682, M.W.B. v. A.R.B. 2013 BCSC 885, Keith v. MacMillan, 2014 BCSC 1352, K.R. v. J.W., 2016 BCSC 225, C.L.M. v. M.J.S., 2017 BCSC 799.

    
    

27. The protection order was sought because of the continuation and severity of Mr. Leudke’s campaign to have his son reside with him. Throughout the history of this matter his antipathy for the claimant and his negative opinion of her has continued. The child has been involved by the respondent throughout and given the child’s age it is clear the respondent is of the view that the “voice” of his son should be heard and that he reside with his father.

    
    

28. The respondent in his response filed on August 17, 2020 is revealing given orders exist preventing discussion by the respondent with the child that concern parenting. The response states:

    
    

    1. Finn is desperately begging for help to make major life changes now.

    2. Finn states that he is afraid of his mother and stepfather.

    3. Finn has been suffering harsh criticism from his mother and stepfather.

    4. Finn states that his mother and stepfather often gang up on him and relentlessly berate him for hours on end, to the point of tears, and then still don’t stop.

    5. Finn writes that he has “had enough!” of his mother’s emotional abuse.

    6. Finn demands the court to “listen” and “help now”.

    7. Finn said that, while he doesn’t want to do it, he will run away again if forced to because of his mother’s inability to change her abusive and over-controlling ways.

    8. Finn does not trust his mother is capable of keeping him safe from her own issues.

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    9. In contrast, Finn writes that he feels nurtured and safe to be himself with his father.

    10. Finn wants to live with his father immediately.

    11. Finn wants his father have full parenting responsibilities, including control of his education.

    12. Finn has be[sic] trying to get help and live with his father for over four years, but that no person or organization is willing or able to actually take him seriously, not even his mother.

    13. Finn states that he has been writing covertly for several months, due to a genuine fear of his mother and stepfather.

    14. Finn felt that he had to protect himself from his mother’s wrath, which he has learned has real consequences, such as supervised and terminated parenting time, both of which he fears.

    15. Finn has resorted to hiding his private journal notes in books, which were were[sic] recently found and scrutinized by his mother and stepfather, and blamed on his father—exactly as he feared.

    16. Finn has figured out a clear pattern in his home indicating when his mother and stepfather are in court.

    17. Finn did in fact correctly identify that pattern on 30/July/2020, when he noticed that his scheduled parenting time was not straightforwardly assured by his mother, which unbeknownst to him was due to her Short Notice Application.

    18. Finn has told his mother of his ongoing plan to run away if his parenting time is ever terminated again.

    19. Finn has asked his mother and stepfather to stop blaming his father and seriously consider their primary role is causing him to feel that he has no option but to run away.

    20. As indicated in his self-authored letters and journal notes over several years, Finn is extremely frustrated with the court and its negative enablers—his mother’s hand-picked partisan counsellors, psychologists, teachers, lawyers, supervisors, maternal family members and friends, etc.—and so he has taken it upon himself to write his own views, without any input from his mother and father.

    21. Finn has been and continues to feel deeply sad to leave his father.

    22. Finn dreads going home to his mother and stepfather.

    23. Finn doesn’t want to further engage in the endless parade of counsellors, psychologists, teachers, lawyers, and other people who his mother has called on to support her views.

    24. While he loves and cherishes the good parts of this maternal family, he hates how they:

        1. Blame his own valid thoughts, choices and actions on his father, who had nothing to do with them;

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        2. Speak badly about his father, often calling him a poor role model for how to treat women, when Finn has only ever seen his father treat women kindly and with respect;

        3. Promote his stepfather as the ideal man and father figure, when they know that Finn actually loves and looks up to his father as his true role-model;

        4. Burden him with their own troublesome emotional issues, which they say are due to his father, who Finn says has never presented such issues him or anyone else in his family;

        5. Recount their long past history of emotional and financial abuse allegations, which Finn has never experienced or been affected by in any real way, but is barred by the court from discussing with his father.

        6. When around his mother and stepfather, Finn hides these negative feelings behind a self-imposed “mask” in order to cope with the alternative fallout and pain.

    25. In contrast, Finn shares his genuine feelings and nature freely with his father.

    26. As clearly stated by Finn, there is ample first person written evidence:

        1. Articulating Finn’s precise views and needs;

        2. Rebuking his mother’s false “storytelling” narrative;

        3. Confirming his father’s facts, version of events and good parenting;

        4. Proving that the past decisions made against his father, to Finn’s detriment, were based on lies, deception and willful ignorance on the part of his mother;

        5. Casting light on his mother and stepfather’s paranoid campaign of total control, tendency to raise frivolous concerns and veiled attempts to induce parental alienation;

        6. Describing the pain, anxiety and other negative effects that he is feeling due to his mother;

        7. Documenting the timeline of this learned helplessness in 2016, beginning with the RCMP trauma, and culminating with his now mature voice and agency as a young adult, in 2020;

        8. Indicating his feelings of frustration, exhaustion, and internalized hopelessness caused by his mother's extremely controlling script and playbook;

        9. Exposing the detrimental rhetorical flourishes (scriptwriting is their trade) of his mother and stepfather;

        10. Requesting the court’s assistance to act immediately to enact his views and meet his needs.

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    27. Finn will be 15 in just three months (DOB: 1/Dec/2005), and has been desperately wanting to live with his father since 2016, when he was taken away by the police at age 11.

    28. To date, Finn’s version of events, views and opinion was never truly sought and acted upon in any way, shape and form—as he states, to his detriment.

    29. Now is the time to abide by and act on Finn’s views and needs, which is his legal right according to the Family Law Act and the Charter of Human Rights and Freedoms.

    [Emphasis in original.]

    
    

29. It is and has been clear throughout the history of this action the respondent has repeatedly breached orders to not involve his son in his efforts to have him reside with him. His narrative has been embraced by his son. The child appears to believe it is up to him to change the parenting arrangement to help his father. The respondent is oblivious to the harm he has and is causing. He does not appear to understand that his actions in failing to follow court orders is the reason for the limitations on his parenting time, not the actions of the claimant. The efforts of the Court to provide unsupervised parenting time have been abused by the respondent’s continuation of his campaign.

    
    

30. He does not state, for example, in his material that he has encouraged his son to remain with his mother in accordance with the orders of the court. He accepts no responsibility for the alleged “trauma” of past police involvement, yet he was the cause of such involvement.

    
    

31. During his oral submission he stated he will never do supervised parenting again and that he is “relentless” and that this [the litigation] has “become his job”.

    
    

32. The respondent brought no application to have the court interview the child but requested it in his submissions. There are cases where such is appropriate. This is not one of them. I refused to hear from the child as that would simply further involve him in the proceedings and involve the court in the respondent’s campaign, potentially giving credence to what the respondent has been telling his son. The respondent is intelligent and even counsel for the claimant acknowledged how convincingly he presents his narrative so can only imagine what it is like for the child.

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    I agree. A child of 14 years would have no chance of not succumbing to the respondent’s influence and narrative.

    
    

33. The child has been receiving psychological services from Dr. Martin Davidson, a registered psychologist, since 2016. In 2020 they met

    February 26, March 23 March 26, April 3 April 7 and April 27. At the request of the Court, he provided a factual statement of his involvement in which he stated:

    
    

    As part of the individual psychotherapy sessions with Finn, I decided to share information contained within the Reasons for Judgment, dated January 22, 2020, written by the Honorable Justice Punnett. In this document Justice Punnett gave me the responsibility for determining how this information should be communicated to Finn. I decided to share the parenting arrangements and reasons for this determination outlined within this document with Finn in an effort to take the pressure off of him to change his living arrangements and to help him place a focus instead on living his life in the present. Finn was highly preoccupied with changing his living arrangements despite previously reporting that he was quite happy in school, had many positive relationships there, and was engaged in a variety of regularly scheduled hobbies and activities in Vancouver that he thoroughly enjoyed. I was hoping to help him direct his focus to these many positive aspects of his life rather than being stressed in an attempt to change something (the living arrangement) that was not under his control. It was my hope that sharing this information would help Finn to understand that the parenting arrangements had been decided by court order and that they would be unlikely to change because of that. I wanted Finn to be able to focus on living life as an adolescent without having to be weighed down by the stress of attempting to direct and change his parenting time.

    
    

    On April 27, 2020, at the start of a psychotherapy session with Finn, he informed me that he no longer wanted to meet together. Finn stated that he did not believe the sessions were helpful because he was not getting what he wanted, which was to change the parenting arrangements such that he could spend alternating weeks living at his mother’s and father’s homes and attend school online. He stated that this was the only change that could improve his life and that none of the approaches taken in psychotherapy to help him manage his emotions and communicate his emotional experience to his mother would be helpful enough. From the start of this session, I noticed a significant change in Finn’s demeanour. Whereas in all previous interactions with Finn he had appeared friendly, engaged, and collaborative, during this particular session he presented as adversarial, providing terse responses, speaking in a harsher tone, and displaying facial expressions that I interpreted to be signs of anger and disapproval with me. Even during past sessions when Finn was upset or frustrated, he still presented as very sincere, sweet, and engaged in conversation with me. His presentation during this session was in stark contrast with how he appeared during every other session, which is what made this interaction stand out so vividly.

    Ghosh v. Leudke Page 16

    
    

    When I observed to Finn that he appeared different during this session, as he seemed adversarial, and even somewhat combative, he immediately changed his demeanour and began smiling and attempting to backtrack on his statements that I was not providing him with what he wanted (a change in the parenting arrangements). Such a sudden change in demeanour was also notable, as I had never previously observed such an about-face in Finn prior to this session. It is important to note that it is not out of the ordinary for an adolescent to decide to terminate therapy or to take an indefinite break.

    However, the manner in which this occurred, so suddenly and communicated in a way that was in such stark contrast to his usual presentation, makes it unusual and unexpected. We ended the session on friendly terms with an agreement that Finn would take some time to think on whether he wanted to terminate therapy. He already had a future session scheduled and he stated that he would make a decision prior to the next session. Several days before his next scheduled session, I was contacted by Sarah to indicate that Finn had decided not to continue with therapy and we have not had contact since this time.

    
    

34. In his reasons for judgment, Fitch J. concluded that the primary residence of the child should be with the claimant. The reasons of Fitch J. are lengthy but those portions relevant to this application follow (emphasis added):

    
    

    [19] While Brandon describes himself as "strong-willed", he was more than that in the relationship - he was controlling and verbally abusive of Sarah. In his testimony, Brandon seriously downplayed the extent to which he dominated, diminished and demeaned Sarah, particularly towards the end of their relationship. He is, in a more general sense, challenged to understand the impact his behaviour sometimes has on others. He is challenged to understand why Sarah believes that his personality characteristics and patterns of behaviour have affected Finn and fears that they will continue to do so in a way that hinders Finn's ability, particularly as he gets older, to make choices for himself. Brandon has a complex personality style. Brandon is too often intransigent in his thinking and inflexible in his behaviours. He has been unwilling to implement the sensible recommendations of Dr. Meuser since release of the Meuser Report. Those recommendations imposed relatively modest obligations on Brandon that were to the end of reconnecting father and child in a way that would engender trust between the parties, improve their communications and behaviours towards one another and, in the end, lead to an award of joint custody. His failure to do so raises serious questions about his ability to understand Finn's best interests from something other than a self-oriented perspective. At the same time, and as Sarah acknowledges, Brandon clearly loves his son. His intellect, creative energy and sense of play are attributes that played an important and positive role in Finn's early development and can play an equally important guiding role in Finn's life moving forward.

    …

    1. …. I am satisfied beyond any doubt that a joint custody order at this stage would do little more than cast Finn adrift in a sea of parental discord,

       Ghosh v. Leudke Page 17

       
       

       given that the parties remain firmly wedded to their perspectives and at loggerheads some three years after separation. I accept in this regard that joint custody is not a risk-free option. As Zuker J. noted in Moreira v. Garcia Dominguez, 2012 ONCJ 128, at para. 126:

       In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

    2. In my respectful view, there is no realistic hope, at this particular point, that Sarah and Brandon would be able to work together co-operatively. I think it almost inevitable that, in the absence of a clear, highly structured and staged order of the kind I propose making, conflict and intense disagreements would arise quickly and over every conceivable issue.

    3. Like Dr. Meuser, I am left with the impression on all of the evidence that Finn is a gentle and sensitive soul. The type of parental conflict that would arise in the absence of a tightly structured and carefully thought out transitional plan would be emotionally damaging to him. I have a responsibility not to put Finn in that position.

    4. For reasons I will develop, it is my view that the appropriate order to be made at this stage is an interim one which essentially preserves the status quo. Sarah will have interim sole custody of Finn. For reasons I will explain, Finn will continue to reside with his mother in the Lower Mainland. I do not foresee Finn's primary residence in the Lower Mainland changing at any future point by reason of a court order.

    …

    [40] Brandon needs to understand and guard against the potential for his own dominant personality to overwhelm his son. His resort to angry demonstrations and verbal abuse in the course of his relationship with Sarah may be unique to the dynamics of that relationship. Having said that, it is important that Sarah and the Court be provided with some assurance that his unacceptable behaviour with Sarah is unlikely to be repeated with or in the presence of Finn. His sincere commitment to counselling sessions will have the added benefit of allaying Sarah's fears; it will reduce the potential for conflict and enhance the trust that exists between them as the transitional order unfolds.

    …

    [64] Dr. Meuser testified at trial that he was fairly certain that had Brandon not sought to manipulate the test results, the personality characteristics described above would have been elevated out of the normal range into a "clinically significant range" and warranted formal diagnosis. Dr. Meuser concluded that, "Brandon shows strong personality characteristics often associated with "Narcissistic Personality Disorder" with some 'Histrionic' tendencies. The prominent pattern being the Narcissistic characteristics..." He noted that the test findings indicate a strong inclination towards both of these disorders and that is it is "entirely likely that Brandon's scores would have

    Ghosh v. Leudke Page 18

    
    

    been elevated to the level of [formal] diagnoses had he not compromised the test validity through systemic manipulation of his responses by underreporting psychological issues."

    [97] … I am entirely satisfied on the evidence I heard at trial that the particular personality traits both possess were brought into the relationship and continue to operate post- separation in a way that has frustrated achievement of the ideal end state. Brandon has consistently demonstrated behaviours that are intransigent and controlling. He has refused to make reasonable compromises even when doing so would have led, in all likelihood, to the normalization of father-son relations. For her part, Sarah's entrenched view that Brandon will treat Finn as he treated her, even though there is little concrete evidence to support that view, has caused her to view Brandon's interactions with their son since separation with suspicion at almost every turn.

    …

    [114] I have set out these examples of Brandon's controlling behavioural patterns with Sarah because they were, as Dr. Meuser testified, not only instrumental in the destruction of Brandon's relationship with her, but also the root of legitimate concerns about how Finn will fare in a relationship with a father who has very headstrong tendencies.While the behaviours I have drawn from the evidence are perhaps innocuous in isolation, particularly in the course of a five-year relationship, I am satisfied that they were a persistent feature of Brandon's interactions with Sarah (and others) and that collectively viewed in light of all of the evidence before me, including the Meuser Report, this entrenched behavioural style is of some significance in terms of assessing Finn's best interests. While it is difficult to predict whether and, if so, to what extent the issue may emerge in Brandon's future parenting of Finn, I am satisfied on the evidence that it will be a challenge for Brandon to recognize this and respond appropriately as Finn gets older and asserts independence from his parents.

    …

    [127] Third, I am satisfied that Brandon, who is very comfortable with conflict, has relatively low insight into events such as these and is, thus, not a reliable reporter of what actually happened.…

    …

    [139] I am completely satisfied, as was Dr. Meuser, that Brandon would never intentionally do anything to in any way harm or instill fear in his son.Despite this, I am also satisfied that Brandon would be slow to take direction from others that it was perhaps time to back off. Dr. Meuser testified that those with narcissistic personality disorder traits tend not to comply with third- party requests not to do something.

    [189] … both Brandon and Sarah must recognize that Finn, desirous of maintaining the love and affection of both of his parents, may be, inclined to say things he believes the person to whom he is speaking wants to hear. The parties must recognize, as I am sure they do, that searching for support for their own perspective through Finn's voice puts the child in an unfair, unhealthy and untenable position.

    Ghosh v. Leudke Page 19

    
    

    …

    [199] … I highlight this evidence as it illustrates, once again, the extent to which Finn has been placed in the middle of the conflict and been positioned to give voice to Brandon and Sarah's concerns.

    …

    [226] Consistent with Dr. Meuser's recommendation, Sarah faithfully continued on with her counselling sessions. As noted above. Brandon has been reluctant to commit to the kind of consistent and intensive therapeutic intervention Dr. Meuser had in mind. His failure to do so has unnecessarily erected another barrier to the normalization of his parenting relationship with Finn, Again, his intransigence on this issue raises serious questions about Brandon's ability to understand his responsibilities to take steps that are in Finn's best interests.

    
    

    [233] In short. Brandon spent considerable effort and time trying to chip away at virtually every recommendation made by Dr. Meuser. When asked at trial why he did not seize the opportunity to see Finn at the Penland residence, Brandon replied that going to the Penlands would not solve the root cause of the problem - Sarah's surreptitious removal of him from his core community of Victoria. Brandon advised that he was not content to be a "weekend dad".

    [251] Brandon has very low insight into how badly he treated Sarah or the extent to which his behaviour impacted on Finn. It is a feature of his personality that Brandon is challenged to understand the impact his behaviour has on others. I am satisfied that untreated, this deficit may well continue forward into his future relationships, including with Finn.

    [252] Brandon is also challenged to understand how dogged pursuit of his goals with respect to Finn have actually worked against him, undermined his relationship with his son, and pulled against Finn's best interests.

    
    

35. The behavior and patterns so concerning to Fitch J. have not abated as hoped. The pattern of behavior of the respondent on the issue of parenting remains entrenched.

    
    

36. The respondent attacks the claimant, however it is clear the child when with his mother has been in a stable home, done well at school, is active, has friends and is involved in a number of activities. The claimant confirms a pattern of Finn being “loving, engaged, open, collaborative, and looking forward to school” but on his return from his father he “often becomes terse, hostile, and aggressive”. She deposes that the child has stopped recovering between visits with his dad and that it is as if she is “dealing with a child who has two different personalities”.

    Ghosh v. Leudke Page 20

    
    

37. The respondent provided to the Court on August 17, 2020 a document called “Finn’s Life Tracker”. This is a remarkable document. It is clear that the respondent is sharing court information with the child and influencing the child to include the respondents scathing criticisms of the claimant and her husband and their home life.

    
    

38. The respondent in his response raised issues respecting non-compliance with court orders, abuse of short notice procedures, adjournments contrary to Finn’s best interests, filing of inadmissible materials supporting the claimant’s application, and allegations about “inadmissible specious arguments based on conclusions of law, premature and unsubstantiated conclusions of fact, hearsay without evidence, speculation, arguably paranoid delusions, erroneous embellishments, misrepresentations, cherry-picking and omissions of information, and a pattern of sharp practice” by counsel. As a result, he sought orders striking out the claimant’s documents, a limitation on future short notice applications, an expedited Views of the Child, his right to continued communications with his son by text messaging and an order preventing “unusual breaches of Finn’s privacy.” He also sought various costs orders including “double and special costs.”

    
    

39. The claimant also seeks orders that:

    
    

    1. That the Respondent’s three weekly phone calls with Finn as defined in the Final Order be supervised on speakerphone in accordance with the guidelines set out in the order of Mr. Justice Punnett (01/SEP/2016).

    2. That the Respondent be prohibited from any communication with Finn via text, e-mail, social media, Internet, or any other form of unsupervised non-telephone communication.

    3. That the Respondent be prohibited from any other form of indirect unsupervised communication with Finn, including, but not limited to, communication through third parties.

    4. That the Claimant is to have the primary and ultimate decision-making authority generally in relation to Finn, with respect to all matters set out in s. 41 of the Family Law Act, including travel, with the Claimant to consult the Respondent regarding any major decisions regarding Finn.

    5. That the reason(s) for the Court decision(s) in this matter be communicated to Finn in a manner as directed by Finn’s psychologist, Dr. Martin Davidson.

       Ghosh v. Leudke Page 21

       
       

    6. Costs of this application.

    
    

40. The history of this litigation reveals a long-standing pattern of behavior by the respondent to pursue parenting of his son, and to do so by drawing his son into his pursuit of that objective. When the order restoring unsupervised parenting was made, I noted that I was doing so with trepidation. The conduct of the respondent since then has evidenced a continuation of the respondent’s previously criticized behavior. The claimant, while not blameless, was, I am satisfied, acting in what she believed was the best interests of their son. Despite her past and continuing concerns as their son has matured, she recognizes the importance of Finn’s relationship with his father.

    
    

41. The respondent in his submissions continues to pursue his perception of events. As counsel for the claimant noted he does so in a convincing manner, illustrating why his son believes his father’s narrative. The false nature of that narrative is illustrated by the findings of this Court as related earlier in these and previous reasons for judgment. Despite the warnings and hopes of Finch J., the respondent has failed to understand or comply with them. His pattern of behavior and his narrative has not changed over the past nine years. It is apparent it never will. He just does not, to put it in popular vernacular, “get it”.

    
    

42. The respondent does not appear to understand how his forceful nature and ability to articulate his position and views is affecting his son. I have no doubt his son finds his father very convincing. Hence the considerable stress his son is placed under. The pressure being placed on Finn must be alleviated.

    
    

43. The claimant submits that in part that can be achieved by removing joint parenting responsibilities from the respondent so it is clear they are not open for debate. She also seeks an order that a fine be imposed whenever the respondent breaches an order.

    
    

44. We now have a situation where the child is in crisis. The fault lies at the feet of his father. His relentless pursuit of shared parenting has placed his son in an

    Ghosh v. Leudke Page 22

    
    

    untenable situation. The stress his conduct is placing on his child must stop. He leaves the Court with few options.

    
    

45. I am told the child is not attending school and that Dr. Davidson has recommended another psychologist counsel the child. The behavior of the respondent has not and is not changing. He is on a mission and has been for many years, and as his son ages the respondent has become worse involving the enlisting of his son in his campaign. He continues to have no understanding of the harm he is doing. Unfortunately, the result has been the child has been the subject of post-trial litigation throughout his youth.

    
    

46. The child remains at risk under s. 184(1) of the FLA.

    
    

    Orders

    
    

47. The protection order is extended until June 2021 including the prohibited indirect contact of third parties and associates of the respondent.

    
    

48. In addition to the protection order, that until June 2021 there shall be no direct or indirect contact by the respondent with the child, indirect contact to include any contact from the respondent or third parties on his behalf.

    
    

49. There shall be a review of the circumstances of the child in June 2021 and until such review is complete these orders remain in effect, subject to any further order of the court.

    
    

50. The claimant shall have her costs of the July 28, 2020 and September 9, 2020 hearings at scale B.

51. The approval of the respondent to the form of this order is dispensed with.

“The Honourable Mr. Justice Punnett”