Court File and Parties
COURT FILE NO.: FC-14-1728-1 DATE: 2019/07/09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Frederick Kaszap, Applicant -and- Amber Volk, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Marc Coderre for the Applicant Barbara Cohen for the Respondent
HEARD: July 4, 2019
Endorsement
[1] The parties are embroiled in a high conflict parenting situation that has persisted since their separation in 2014. The oldest child, M., is now twelve years of age and does not want to have any contact with Mr. Kaszap, who has acted as a father towards her since she was two years of age. M.’s younger sibling, C., now eight years of age, is in an equal parenting arrangement, spending alternate weeks with each parent.
[2] The current timesharing arrangement for M. is a significant change. After separation, until the summer of 2017, both children primarily resided with Mr. Kaszap. From the summer of 2017 to the summer of 2018, both children spent equal time with each parent, on an alternating weekly basis. This equal timesharing arrangement broke down in the summer of 2018 when M. refused to return to Mr. Kaszap’s care.
[3] Mr. Kaszap seeks an order for M. to participate in reunification counselling. He believes that Ms. Volk and her new partner have alienated M. from him and fears that this relationship will not heal without structured intervention, which is contrary to M.’s best interests.
[4] Ms. Volk opposes reunification counselling. Ms. Volk relies on the Voice of the Child (VOC) report prepared by Ms. Bourgeois, which states that M. does not want to attend reunification counselling. M. is in individual counselling. Ms. Volk proposes that M. continue her individual counselling and check in regularly with Ms. Bourgeois, to confirm if the child wishes to attend reunification counselling with Mr. Kaszap. Ms. Volk states that she would support such counselling if M. wishes to engage in it.
[5] Ms. Volk seeks an order granting her sole custody of both children, on the basis that the hostility between the parties makes joint decision-making unrealistic. Mr. Kaszap opposes this and is fearful that Ms. Volk will use sole custody to exclude him further from the children’s lives. Mr. Kaszap’s position is that the allegations made against him stem from Ms. Volk. She has made the same allegations for years. A comprehensive custody and access assessment investigated these allegations and, in the report completed in May of 2017, recommended joint custody and equal timesharing. These recommendations underlie the existing order. Mr. Kaszap admits that there has been a material change concerning M. that impacts custody, but disputes that there has been a material change concerning C.
[6] The parties do not agree on the frequency of C.’s counselling. Although they agree that C. should be in counselling, Ms. Volk seeks to have her attend weekly sessions based on the therapist’s recommendation. Mr. Kaszap believes this is too much and seeks that C. only attend every two weeks.
[7] The issues to be decided are:
- What is the custodial (decision-making) arrangement that is in M.’s best interests?
- Is it in M.’s best interests to be required to attend some form of reunification counselling to address her relationship with Mr Kaszap?
- Has there been a material change warranting a change of joint custody for C. and, if so, what custodial (decision-making) arrangement is in C.’s best interests?
Consent Orders
[8] Before the hearing of the motion, the parties agreed to terms respecting each child’s residential situation, child support, and provisions concerning travel. Mr. Kaszap also agreed to the dismissal of his contempt motion. I make these consent orders below.
[9] In arriving at these consents, the parties have not specifically addressed how the consent orders change the various terms of the Final Order of Justice Labrosse, dated August 2, 2017. They need to do so to have a clear order between them that governs parenting. If the parties are unable to agree to a consent variation order that stipulates what terms in the Final Order of Justice Labrosse, dated August 2, 2017, are changed, and how, and what terms persist, they may schedule a conference before me to do so.
[10] The parties agree that no child support shall be payable between them. This child support is different from the amount that would be determined in accordance with the Child Support Guidelines. I accept the parties’ submission that this child support arrangement reflects compromises by both parties on several issues, including Ms. Volk’s income and the child support obligation of M.’s biological father. I find that these compromises provide significant benefits to both children by reducing the conflict between the parties. I find that the parties have made reasonable arrangements for the support of the children and that the children are not supported out of public money. Accordingly, I have granted the consent order on child support.
Child Protection Record
[11] The affidavit of Ms. Volk, sworn November 9, 2018, contains the records from the Children’s Aid Society concerning its investigation of the events from the summer of 2018, as well as references to the content of these records. I find that this affidavit should be sealed under s. 70 (a) of the Children’s Law Reform Act, given the risk of harm to the children if this material was in the public realm, and that doing so is in the children’s best interests. Sealing this information is consistent with the prohibition on identifying such material in proceedings under the Child, Youth and Family Services Act. This order is on the consent of the parties.
Issue 1: What is the custodial (decision-making) arrangement that is in M.’s best interests?
[12] I find that it is in M.’s best interests to be in the sole custody of Ms. Volk.
[13] Although the parties disagree on the cause of the current situation, they both agree that M. has been consistent since the summer of 2018 that she does not want a relationship with Mr. Kaszap at this time. The VOC Report, filed as an affidavit, provides compelling evidence that M. is afraid, emotionally and physically distressed, and anxious about the prospect of Mr. Kaszap having a presence in her life.
[14] Whatever the cause of M.’s current distress regarding Mr. Kaszap, I find that it is in her best interests to insulate her from Mr. Kaszap having a decision-making role in her life, at this time. Accordingly, I order that paragraphs 1 and 8 of the Final Order of Justice Labrosse, dated August 2, 2017, are changed to provide that Ms. Volk has sole custody of M.
Issue 2: Is it in M.’s best interests to be required to attend some form of reunification counselling to address her relationship with Mr. Kaszap?
[15] I decline to make an order requiring M. to participate in reunification counselling. Mr. Kaszap has not provided any evidence of what this proposed counselling would entail, other than to identify two possible counsellors. There is insufficient evidence before me to determine that such counselling is in M.’s best interests. There is evidence before me that there is a risk of harm to the child if I order such counselling because of the child’s opposition and current mental health. The evidence of M.’s mental health includes reports over the last year and a half of sadness, depression, anxiety, and suicidal thoughts.
[16] The parties agree that it is in M.’s best interests to continue in her individual counselling. Their dispute is that Mr. Kaszap seeks a more formal order that has, as its specific focus, reunification with him. I decline to make that order at this time.
[17] The evidence before me regarding M.’s views on “reunification counselling” call for caution. The evidence in the VOC report, which I accept, is that Ms. Bourgeois discussed the option of reunification counselling (the term “reunification counselling” is not defined in the VOC report, nor does it set out the details of any specific therapeutic plan for “reunification counselling”) with M. on three different occasions. On the first occasion, Ms. Bourgeois describes M. as being “quite resistant” to participating in such a process. On the second and third occasions, M.’s response was “maybe.” M. later texted Ms. Bourgeois that she was not comfortable with the idea. The evidence, at best, is that M. is very reluctant to participate in such counselling, and at worst, that M. does not want to participate.
[18] The evidence of M.’s mental health heightens the need for caution. The records of the Children’s Aid Society file, the VOC report, and the child’s school counsellor all support that M. has experienced significant anxiety and stress over the past year, including suicidal thoughts. There is evidence of her anxiety and stress manifesting into significant physical discomfort.
[19] Mr. Kaszap has not provided a detailed therapeutic proposal setting out exactly what he seeks by “reunification counselling.” It may be that in certain situations, a detailed therapeutic proposal, or plan, is not required before a Court makes such an order. However, the absence of a detailed therapeutic proposal makes it difficult to assess the child’s best interests. I agree with Justice Jarvis’s caution against ordering reunification counselling in the absence of a detailed proposal, as set out in his decision in Testani v Haughton, 2016 ONSC 5827. In that decision, Justice Jarvis stated that orders for reunification counselling should be made sparingly, on compelling evidence that the therapy will be beneficial, and that the request for such counselling must be supported by a detailed proposal identifying the proposed counsellor and what is expected.
[20] The absence of a detailed plan also makes it difficult to determine if the Health Care Consent Act, 1996 applies to the proposed therapy, including, specifically, whether the counselling is treatment under the Act, whether there is a risk of harm to a participant, and whether the child’s consent is required. In Leelaratna v. Leelaratna, 2018 ONSC 5983, Justice Audet held that determining whether the Health Care Consent Act applies to the specific therapeutic order sought is an important step before making such an order, and needs to be determined on a case-by-case basis.
[21] I also find that an order for reunification counselling would be premature at this time. Ms. Bourgeois recommended that M. have individual counselling, and this counselling has begun. However, this counselling is in its early stages. There is no independent evidence before this court on progressions made because of this counselling.
[22] Although I decline to order reunification counselling at this time, I find that it is in M.’s best interest to provide a process by which M. can indicate if her views and preferences have changed. This is in addition to M. continuing her individual counselling, which will hopefully provide her with significant supports to assist her in managing her current challenges, which include the high level of conflict between her parental figures.
[23] This process will require the involvement of a third-party mental health professional. This is because the role of M.’s individual counsellor is to provide therapeutic supports to M., and the counsellor’s express condition for doing so is that this counselling be confidential. Both parties agree to this confidentiality. This confidentiality means that the counsellor will not provide any information to the parties, nor to the court or other third parties, subject only to the requirement to report a risk of harm as required by law.
[24] I find that this third-party mental health professional should be Ms. Bourgeois, subject to Ms. Bourgeois being willing to act in this role. M. is already familiar with Ms. Bourgeois. This avoids bringing a new professional into M.’s life. Ms. Bourgeois would, therefore, meet with M. every quarter to update her views and preferences regarding contact with Mr. Kaszap and participating in a type of reunification counselling, or other counselling processes with his involvement, and Ms. Volk’s involvement. Ms. Bourgeois will communicate any changes in M.’s views and preferences to both parties. Each party shall be responsible for paying one-half of the cost of Ms. Bourgeois’ fees for providing this service. If one side does not pay their share of this cost, within 30 days of receiving Ms. Bourgeois’ invoice, their share shall be enforceable as child support (as a section 7 expense). This is an exception to the order respecting the sharing of section 7 expenses that the parties have agreed to as set out below.
[25] Mr. Kaszap sought an order for M. to attend dinners with him and C. two times per month. He did not pursue this at the motion. I agree that such an order should not be made at this time, for the reasons as above.
[26] I find that it is M.’s best interests, at this time, for Mr. Kaszap not to attend M.’s activities. Mr. Kaszap has backed away from contact with M. since the current issues arose in the summer of 2018. I accept, based on Mr. Kaszap’s evidence that he has been reluctant to do so, as he wants M. to know that he loves her and wants to have a relationship with her. Mr. Kaszap has attended some of M.’s activities, in particular, soccer, to demonstrate this, although I accept that he stayed away from contact with M. on these occasions. However, the evidence before me is that Mr. Kaszap’s presence at M. games causes her stress and anxiety.
[27] For the same reasons, paragraph 25 of the Final Order of Justice Labrosse, dated August 2, 2017, is also changed to remove the provision for Mr. Kaszap’s to have telephone calls with M. two times per week. This was not a contentious issue on the motion, as these phone calls are not taking place.
[28] The orders I have made with respect to reunification counselling and Mr. Kaszap’s contact with M. are not intended to be a permanent bar on Mr. Kaszap’s presence in M.’s life. Rather, I have made these orders to attempt to insulate M. from the conflict between her parents and her concerns about Mr. Kaszap having a strong presence in her life, during this stage of M.’s individual counselling. These orders shall be reviewable, on a motion brought before myself, or other Judge if I am not available, after July 1, 2020.
Issue 3: Has there been a material change warranting a change of joint custody for C. and, if so, what custodial arrangement is in C.’s best interests?
[29] I do not find that there has been a material change that impacts on decision making for C., based on the same events that have arisen with respect to M. C. is a very different child than M., and appears not to have been exposed, or is more resilient, to the same events that have impacted M.
[30] Ms. Volk’s main argument in seeking sole custody of C. is that the ongoing conflict between herself and Mr. Kaszap, for which she blames Mr. Kaszap, is a material change that makes joint custodial decision making contrary to the child’s best interests. However, the evidence does not support that this conflict has materially affected C. (See Gordon v. Goertz). Ms. Volk has not identified any issues with the parties making decisions for C. under the current order, except for C.’s counselling, which I address below. This may be because although the existing order provides for the parties to have joint custody, it also prescribes how many of these decisions will be made.
[31] For example, the order provides:
- that the parent residing with the child will make daily decisions affecting the child’s welfare;
- the children’s doctor is identified;
- a process is set out to select the children’s dentist;
- the children’s school is prescribed; and
- both parties are prohibited from changing the children’s religion.
[32] Ms. Volk’s concerns that the parties will not be able to agree on appropriate medical treatment for C. if she is diagnosed with ADHD are too speculative to constitute a material change. C. has recently had a psycho-educational assessment. The assessment is not yet complete. C. has not been diagnosed with a medical condition, and the evidence is not clear that the assessment report will even do so. Medical providers have not recommended treatment or medication for C. Notably, the parents were able to jointly agree to C. having the psycho-educational assessment. If a diagnosis is made, and medical treatment recommended, the fact that Mr. Kaszap may want a second opinion in the complex area of diagnosing and treating ADHD is not unreasonable. This is not a basis for changing the custodial provisions of the existing order concerning C.
[33] I caution that if C. is diagnosed with ADHD and there are treatment issues that the parties need to decide, they should review the existing case law in this area, with the assistance of counsel, to understand the weight that a court normally places on the recommendations of medical providers qualified in this area.
[34] C. is also in individual counselling. The parties jointly agreed to this counselling. The counsellor has recommended that C. attend weekly counselling sessions for an initial period. Mr. Kaszap opposes weekly sessions and states he will agree to C. attending bi-weekly, but not weekly.
[35] Mr. Kaszap’s position was that attending weekly was too much counselling for C. The only evidence he relies on in support of this is the recommendation of Ms. Kapasky, made in her May 1, 2017 assessment report, that the children had been involved in too much counselling at that point. Ms. Kapasky’s recommendation predates the current events and is not as strong an indicator of C.’s current needs, and best interests, as her therapist’s report.
[36] Ms. Volk has provided emails between herself and Mr. Kaszap on the issue of C.’s counselling. These emails support a finding that Mr. Kaszap has created issues in the joint decision making for C.’s counselling. He has been slow to respond. He has not been proactive in seeking out additional information when he stated this was needed. He has been inconsistent – originally agreeing to counselling for C., telling Ms. Volk she can set it up, then advising, once it was set up, and after some delay, that he opposed the frequency of the counselling and being non-responsive in explaining what he was prepared to agree to, and whether he would take C. to counselling on his weeks. This is not in C.’s best interests, and for this reason, I grant Ms. Volk sole custodial decision making over the frequency with which C. shall attend counselling.
[37] Ms. Volk shall consult Mr. Kaszap on the frequency of C.’s counselling, but if they are unable to agree, she will have the final say. This order does not change Mr. Kaszap’s right to communicate with C.’s counsellor concerning the counselling progress, including providing information to the counsellor or receiving recommendations from the counsellor. However, Mr. Kaszap shall be responsible for paying for the costs of his communications with the counsellor. If he fails to pay such costs, Mr. Kaszap’s obligation to pay the costs of his communications with C.’s counsellor shall be enforceable as child support (as section 7 expenses). This is an exception to the order respecting the sharing of section 7 expenses that the parties have agreed to as set out below.
[38] If C. is attending counselling weekly, Mr. Kaszap shall ensure that C. attends counselling when C. is in his care.
Disposition
[39] On consent, I make the following Final Orders:
a. the Final Order of Justice Labrosse, dated August 2, 2017, is changed to provide: 1. M. shall reside primarily with Ms. Volk. 2. There shall be no change to the access of C., which shall continue on a 50/50 week-about rotation of access. 3. There shall be no child support payable by either parent. 4. Mr. Kaszap shall pay for future section 7 expenses at his discretion upon production of receipts from Ms. Volk. 5. Ms. Volk shall apply for and maintain the passports of the children, M. and C., in her care; Mr. Kaszap’s consent or signature on the application is dispensed with. 6. Either party shall be able to travel internationally with M. and/or C., with the consent of the other party, which shall not be unreasonably refused. The passports shall be made available to the parent travelling with the child(ren). 7. The parties will alternate birthday visitation with C. annually starting with the Ms. Volk in 2020, and the non-access party shall have telephone access to C. 8. Halloween is to be alternated as per the Order of Justice Labrosse. However, C. shall be dropped off in the morning on Halloween morning and returned the next day. 9. Ms. Volk access to C. shall be suspended for one week in the summer for Red Pine Camp as per the Minutes of Settlement. 10. Mr. Kaszap’s access to C. shall be suspended for one week in the summer to allow the children to spend one week in Perth with their maternal grandmother. 11. The parties shall have the right of first refusal over and above extended family when it comes to preparation of extraordinary events for C. such as graduation, performances etc. b. The parties shall attempt to agree on a consent variation order that stipulates what, and how, terms in the Final Order of Justice Labrosse, dated August 2, 2017, are changed by the above consents. If the parties are unable to agree to a consent variation order that stipulates what terms in the Final Order of Justice Labrosse, dated August 2, 2017, are changed, and how, and what terms persist, they may schedule a conference before me to do so. c. Mr. Kaszap’s claim for finding Ms. Volk in contempt is dismissed. d. Ms. Volk’s affidavit, sworn November 9, 2018, and exhibits, located at Tab 5 of Volume 1 of the Continuing Record, shall be sealed.
[40] I also make the following orders (not on consent):
- Paragraphs 1 and 8 of the Final Order of Justice Labrosse, dated August 2, 2017, are changed to provide that Ms. Volk shall have sole custody of M.
- Paragraphs 1 and 8 of the Final Order of Justice Labrosse, dated August 2, 2017, is changed to provide that the parties shall have joint custody of C. except concerning the frequency of C.’s counselling, for which Ms. Volk shall have sole custodial decision making. Ms. Volk shall consult with Mr. Kaszap in advance of making decisions regarding the frequency of C.’s counselling, but if they are unable to agree, Ms. Volk shall have the final say. If C. is attending counselling weekly, Mr. Kaszap shall ensure that C. attends counselling when C. is in his care.
- Mr. Kaszap shall have the right to communicate with C.’s counsellor concerning the counselling progress, including providing information to the counsellor or receiving recommendations from the counsellor. Mr. Kaszap shall be responsible for paying for the costs of his communications with the counsellor. If he fails to pay such costs, Mr. Kaszap’s obligation to pay the costs of his communications with C.’s counsellor shall be enforceable as child support (as section 7 expenses). This is an exception to the order respecting the sharing of section 7 expenses that the parties have agreed to as set out above.
- A neutral third-party mental health professional shall meet with M. every quarter to update her views and preferences regarding contact with Mr. Kaszap and participating in a type of reunification counselling, or other counselling process with his involvement, and Ms. Volk’s involvement. This third party shall communicate any changes in M’s views and preferences to both parties. Each party shall be responsible for paying one-half of the cost of this third party’s fees for providing this service. If one side does not pay their share of this cost, within 30 days of receiving the invoice, their share shall be enforceable as child support (as a section 7 expense). This is an exception to the order respecting the sharing of section 7 expenses that the parties have agreed to as set out above. The involvement of the third party in this role shall continue until otherwise agreed between the parties or court order.
- This third party shall be Ms. Bourgeois if she agrees to act in this role. If she does not agree to act in this role, or at some future point is not willing to continue, the parties shall attempt to agree on another third party. If they are unable to agree, they may return a motion before me to do so.
- Mr. Kaszap shall not attend M.’s activities until otherwise agreed between the parties or further court order.
- Paragraph 25 of the Final Order of Justice Labrosse, dated August 2, 2017, is changed to remove the provision for Mr. Kaszap’s to have telephone calls with M. two times per week.
- The issue of M’s participating in reunification counselling and her contact with Mr. Kaszap shall be reviewable, on a motion brought before myself, or other Judge if I am not available, after July 1, 2020.
Costs
[41] If the parties are unable to agree on the costs of this motion, Ms. Volk may file submissions concerning costs on or before July 24, 2019. Mr. Kaszap may file submissions concerning costs on or before July 31, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
