Court File and Parties

Court File No.: FC-22-00001039-0000 Date: 2023/05/18 Superior Court of Justice - Ontario

Re: Robert John Gee, Applicant And: Denise Lynn Gee, Respondent

Before: Justice I.F. Leach

Counsel: Kimberly Doucett, for the Applicant Louise Mimnagh, for the Respondent Kate Bennett, for the Office of the Children’s Lawyer, (“the OCL”), representing the views of the parties’ child Ryan Samuel Gee

Heard: May 11, 2023

Endorsement

Introduction – nature of relief requested and party positions

[1] The Applicant husband/father in this matrimonial litigation has brought a motion seeking an order compelling both parties to participate, and ensure and facilitate the participation of their son Ryan, in “reconciliation” or “reunification” counselling aimed primarily at re-establishing a relationship between the Applicant and Ryan.

[2] Other provisions of the requested order would address ancillary matters, in support of the requested therapeutic counselling process, such as:

a. completion of the steps necessary to formally and financially retain a specified counsellor; b. arrangements for transportation of Ryan to and from counselling appointments; c. restrictions on recording of counselling sessions and discussion of the court order directing such counselling without approval of the counsellor; d. authority to be conferred on the counsellor in relation to interviewing, retaining and/or otherwise involving other persons in the counselling process, including other professionals; e. provision of documentation to the counsellor; and f. recommendations and reports by the counsellor in relation to such matters as the scheduling of parenting time, failure to attend appointments and/or bring the parties’ children to appointments, failure to fulfil financial obligations relating to the counselling process, continuation or termination of such counselling, as a prelude to a party bringing an “emergency motion for directions” pursuant to a specified process to be identified and essentially pre-authorized by the court in advance.

[3] Granting of the relief requested by the Applicant is opposed by the Respondent wife/mother, and by the OCL on Ryan’s behalf.

Further background

[4] I will have more to say about certain factual matters during the course of my analysis below, but by way of further initial background:

a. The parties married in 2001, and remained together for approximately 19 years until their separation in January of 2020. b. There are two children of the marriage; a daughter born in 2002, (who was 17 when the parties separated and who now attends university in the United States), and their son Ryan, (the principal subject of this motion), who was 13 when the parties separated but is now 17, and turning 18 in approximately 10 months. c. There appears to be little or no dispute that the Applicant and Ryan enjoyed a positive relationship prior to the parties’ separation; e.g., with the Applicant serving as a coach in relation to all of Ryan’s numerous summer and winter sporting activities, and regularly engaging in other athletic, recreational and social activities with Ryan. d. While our matrimonial law has largely moved away from any substantive focus on the reasons for marriage breakdown, there seems to be no dispute that the circumstances of separation in this case were particularly difficult from the perspective of all concerned, and resulted in a strained relationship between the Applicant and Ryan. There nevertheless are disputes as to precisely who or what was and/or has been responsible for that strain. At the risk of over-simplification in that regard: i. In his motion material, the Applicant readily acknowledges that he left the marital relationship for a new partner, and says he takes “full responsibility” for his actions in that regard. However, he says his relationship with both children actually has been severely and detrimentally impacted by the Respondent’s resulting and ongoing feelings of bitterness and hurt, her inability to separate such feelings from the wants and needs of the children, and her resulting ongoing efforts to punish the Respondent by encouraging the children to view their father in a negative way, by otherwise thwarting or undermining the Applicant’s repeated efforts to reach out to his children and maintain and/or restore his relationship with them, by repeated failure to provide details and updates of issues the children are facing, (including Ryan’s apparent struggles with school, anxiety, depression, anger/frustration and some experimentation with vaping and drugs), and by repeated failure to address the Applicant’s post-separation requests for more parenting time and therapeutic assistance for the children. In support of such assertions, the Applicant provided affidavit evidence describing, in considerable detail, (and with photographs depicting unpleasant comments written by the Respondent on property returned to the Applicant shortly after the parties’ separation), numerous alleged incidents of hostile or otherwise negative and/or unreasonable behaviour on the part of the Respondent towards the Applicant. (I have reviewed and considered the specifics of that evidence, but think it unnecessary and unhelpful to recount those details here.) The Applicant also denies assertions that he unreasonably has attempted to “push a blended family setting” on his children; i.e., by requiring either of them to interact with the Applicant’s new partner and her children from a previous relationship. From the Applicant’s perspective, Ryan has not expressed or demonstrated any significant or lingering resentment in that regard. The Applicant instead attributes Ryan’s alleged reluctance to interact with his father, and apparent reticence to communicate his feelings in that regard, to the Respondent’s direct or indirect influence, and Ryan feeling “unsafe and unsupported” in terms of his ability to freely share or act on his views. ii. In her responding motion material, the Respondent acknowledges that she initially felt hurt by the Applicant’s affair, and admittedly was emotionally distraught in the immediate wake of that revelation and the parties’ separation; e.g., feelings which led to her unfortunate comments written on certain items of property returned to the Applicant. However, she denies having exposed the children to such emotions. In that regard, she says that she has “moved on” emotionally, and that the Applicant and his new partner simply “are not topics of conversation” in her household. She denies the allegations of inappropriate behaviour attributed to her by the Applicant in what she regards as the Applicant’s “exhausting”, “aggressive” and “inflammatory” communications and affidavits and describes numerous incidents of alleged unreasonable behaviour on the part of the Applicant, providing numerous specifics in that regard I similarly think it unnecessary and unhelpful to repeat here. She also specifically rejects the assertion that she has undermined or not supported and encouraged an ongoing relationship between the children and their father, or is otherwise trying to “punish” the Applicant. To the contrary, she says that it actually is the Applicant who continues to exhibit anger and hostility towards her, and that, despite the Applicant’s denials and insistence on a different reality, she always has allowed the children to see their father, and repeatedly has provided “lots of persuasive encouragement” in that regard. In support of such assertions, I note in particular an extended email, (included in the Applicant’s motion material) which the Respondent sent to the children and copied to the Applicant in an effort to make the Applicant see the reality of what she was communicating to the children; i.e., emphasizing in writing what the children were said to have “heard before”, in relation to confirmation that the Applicant wanted a relationship with them, that the Respondent supported such a relationship between the children and their father if they wanted that, and that the Respondent will not feel the children are “betraying” her if they choose to have a relationship with their father. [1] According to the Respondent, while she continues to encourage Ryan to engage with the Applicant, Ryan becomes “frustrated, annoyed or angry” with the Respondent “nagging” him in that regard. For all of those reasons, the Respondent accordingly disclaims any association with the “ebb and flow” in the relationship between the Applicant and Ryan, and emphasizes that there are other possible reasons for Ryan’s independent decisions in relation to such matters. In particular, she notes that the circumstances of the parties’ separation were particularly difficult for the children, as the Applicant’s new partner was a neighbour and family friend, (whose children had been taught by the Applicant and were babysat by the parties’ daughter), and the very public nature of such developments, within the relatively small community where the parties and the children live; a situation then made more uncomfortable by the Applicant noticeably hosting his new partner and her children for gatherings at his new home, (the former home of the Applicant’s parents and Ryan’s grandparents), which immediately backed onto the property of the former matrimonial home. iii. Through his counsel appointed by the OCL, Ryan himself attributed his strained relationship with the Applicant to a “lot of anger” he feels towards his father for the family’s “breakdown”, and because of what Ryan perceives to be his father’s “push” to have Ryan establish a relationship with the Applicant’s “new” family. e. There appeared to be little dispute that there has been little contact between the Applicant and Ryan since an overnight trip in March of 2022, apart from a relatively brief interaction between them at the funeral for the Applicant’s father, (i.e., Ryan’s grandfather), in February of this year.

Party positions

[5] The positions of the parties were reflected to some extent in the filed motion material, but were highlighted in the submissions of counsel.

[6] The Applicant obviously seeks the formally requested relief described above. At the risk of further over-simplification, the Applicant’s reasons in that regard included the following:

a. It was emphasized that the Applicant has never alleged “parental alienation” on the part of the Respondent, despite his feelings that the Respondent’s emotions and actions have directly or indirectly contributed to the current estrangement between father and son. However, it was said that the current situation is simply “unacceptable”. In that regard, the Applicant is clearly frustrated by the current situation, and obviously feels that something must be done soon, not only to assist Ryan with his emotions and struggles, but to work towards rehabilitation of the father and son relationship before the current rift in that regard becomes irreparable. b. It was argued that Ryan clearly seems to be struggling and in need of assistance, that the need for therapeutic intervention is long overdue, that efforts at reunification therapy are inherently beneficial, and that the desired counsellor, (Paula DeVeto), is experienced and well-qualified, and therefore someone whose views and recommendations, (e.g., as to the parenting time that should be exercised between Ryan and his father), should be accorded considerable weight. c. It was emphasized that benefits of up to $3,000.00 per year were available to assist with the funding of such counselling arrangements, and argued that the value of such counselling or therapy would far exceed any associated costs. To the extent the associated expense of such therapeutic efforts would exceed available funding from benefits, equal sharing of the surplus cost by the parties was said to be appropriate.

[7] At the risk of further over-simplification, the Respondent’s reasons for opposing the relief sought by the Applicant included the following:

a. While the Respondent was open to family counselling and advised the Applicant that she would encourage Ryan to participate, she thereafter found aspects of the approach taken by Ms DeVeto to be discouraging, is inclined to support Ryan’s now confirmed and independently adopted position in relation to such counselling, (addressed in greater detail below), has serious concern about what she regards as the likely litigious response of the Applicant if the suggested counselling does not progress in the way contemplated by the Applicant and the Applicant blames the Respondent in that regard, and has further reservations about numerous ancillary terms of the Order requested by the Applicant; e.g., in relation to the suggested manner of incidental issue resolution and apportionment of the costs associated with the counselling/therapy program the Applicant seeks to put in place. b. As for the approach adopted by Ms DeVeto, who apparently suggested the immediate implementation of established hours of parenting time between the Applicant and Ryan each Wednesday and Sunday as a precondition of moving forward with the proposed counselling/therapy, the Respondent feels the suggestion is counter-intuitive and “backwards”; i.e., insofar as the Respondent believes further interaction between Ryan and his father should build incrementally on gains made through the therapeutic process, instead of being instituted immediately without regard to the existing state of affairs, Ryan’s views and preferences, and the reasons for the estrangement between Ryan and the Applicant from Ryan’s perspective. The fact that Ms DeVeto suggested such an approach, and did so before any preliminary consultation or meetings with Ryan and the Respondent, also has undermined the Respondent’s faith in Ms DeVeto as an appropriate counsellor/therapist to address the situation. c. In relation to Ryan’s views and preferences, the Respondent feels those should be given considerable deference having regard to the reality that Ryan is nearing his age of majority, has the maturity to make informed and reasoned decisions regarding his own life, and has done so in this instance. As noted above, the Respondent therefore is now inclined to support Ryan’s independent wishes in relation to the Applicant’s counselling/therapy proposals. d. For related reasons, and having regard to the history of this matter, the Respondent has serious doubts about Ryan’s willingness to engage or engage meaningfully in such counselling/therapy even if he is ordered to do so; e.g., because Ryan is now largely independent in his decision making, already has declined to engage in counselling efforts the Respondent has tried to organize and encourage, and increasingly prefers consultation with his peers rather than discussion with the Respondent or others. She therefore thinks there is a significant possibility if not probability that the counselling/therapy contemplated by the Applicant will not succeed, and fears, (as noted above), that the Applicant inevitably will attribute any such failure to the Respondent despite the underlying realities, in turn prompting further acrimonious and expensive litigation which nevertheless will not advance the progress of such counselling/therapy in any event, if Ryan genuinely and independently is not committed to the process. e. As for the ancillary procedures suggested by the Applicant, the Respondent has significant reservations about the approach to parenting time issues, and the record in relation to any further motions, effectively being controlled and/or limited in large measure by decisions of Ms DeVeto and what she chooses to include or omit from her contemplated recommendations and reports. f. As for the cost apportionment proposed by the Applicant, the Respondent emphasizes that this is a process sought by the Applicant, with numerous likely complications for the reasons set forth above, and that her financial situation is constrained compared to that of the Applicant.

[8] As for the views and preferences of Ryan:

a. While the OCL tendered no affidavit evidence setting forth or describing those views and preferences or how they were obtained, Ms Bennett indicated, (and counsel for the parties did not dispute), that all concerned had agreed that Ms Bennett would be at liberty to simply convey Ryan’s views and preferences from counsel table – or a notional counsel table, having regard to the virtual nature of the proceedings. [2] It nevertheless also was confirmed that the partial summary of Ryan’s views and preferences set forth in the Respondent’s affidavit of May 5, 2023, referring to the results of the OCL disclosure meeting held on May 3, 2023, was accurate. b. Ms Bennett indicated and confirmed that she had met with Ryan three times following her successive reviews of the pleadings and evidence filed by the parties; once in person, (at Ms Bennett’s office), and twice virtually via Zoom video conferences. She also had sought and considered disclosure provided by the Children’s Aid Society, the Thames Valley District School Board and Ryan’s health care providers. c. Ms Bennett emphasized her professional view that she had no concerns at all regarding the consistency, clarity or independence of the views and preferences conveyed to her by Ryan, whom she described as being very open and engaged during all three of their meetings. Moreover, Ryan impressed her as a well-spoken and articulate 17-year-old, who provided very clear and thoughtful answers to questions, and views and preferences that were quite clear and reasoned. d. In his discussions with Ms Bennett, Ryan was “absolutely” able to convey many positive memories of interaction with his father prior to the parties’ separation, and confirmed that he had what he described as a good relationship with the Applicant before then. However, (as already noted above), Ryan nevertheless independently conveyed and emphasized to Ms Bennett his strong feeling and position that his relationship with his father had been damaged and broken down because of the Applicant’s behaviour during and after the parties’ separation, in turn causing Ryan to be “quite angry” with his father. Ryan emphasized that his strong feelings in that regard are “significant”, and that such feelings and views prevent him from wanting to engage in the reconciliation therapy. In that regard, (and as also noted above), matters have been made worse by Ryan’s perception that his father has “pushed” to establish a relationship between Ryan and the Applicant’s “new” family. e. Ryan also independently indicated and confirmed, to Ms Bennett, his awareness that both his parents want him to engage in the proposed reunification counselling/therapy, but he has his own thoughts as to whether he is prepared to do so. In that regard, Ms Bennett emphasized that Ryan was very clear that he does not want to engage in the contemplated reconciliation or reunification therapy. He indicated that he “supposed” he physically would go to see the counsellor or other service providers involved if “ordered to” do so by a court, but was adamant that he nevertheless would not engage or participate in any discussion during any such physical attendances or meetings, and would absolutely refuse to attend any session or sessions with his father. More generally, Ryan indicated that any order forcing him to attend and/or engage in any such reconciliation therapy would be disappointing, and simply add to the anger he currently has towards his father. f. Ms Bennett added that she and Ryan had further discussion about other therapeutic processes that Ryan might want to consider, if only on an individual basis. However, Ryan indicated that he similarly was not prepared to engage in any individual therapeutic work “at this time”.

[9] With all of the above in mind, I turn next to the law regarding such matters.

General principles

[10] Although the parties addressed the issue of jurisdiction to make the requested order at some length in their material, there appeared to be little or no dispute in that regard, and I independently am of the view that such jurisdiction exists. Without limiting the generality of the foregoing:

a. Section 16.1 of the Divorce Act, R.S.C. 1985, c.3, (2nd Supp.), as amended, and Section 28 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as amended, each give the court broad authority to make orders the court considers necessary and appropriate in relation to parenting and contact orders, and other corollary orders affecting most aspects of a child’s life, where parents disagree. b. Our Court of Appeal has confirmed that such authority includes the ability of the court to make orders regarding counselling or therapy. [3]

[11] As for when and how such authority should be exercised in a particular case, general principles include the following:

a. While a number of factors and concerns are relevant to a court’s decisions in that regard, such decisions fundamentally are to be governed only by a determination of the best interests of the child. [4] b. A child’s views and preferences are but one factor to be considered in that regard, giving due weight to the child’s age and maturity. [5] A child’s refusal to attend counselling therefore is not necessarily determinative of what would be in the child’s best interests. [6] c. However, the “best interests” standard also must be interpreted in a way the reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. In that regard, our courts therefore also recognize that a minor’s views and preferences should be given greater weight as the child’s maturity increases, and that mature adolescents in particular have strong claims to autonomy; i.e., generally, the older the child, the more such orders will require the co-operation of the child and consideration of the child’s wishes. [7] d. While such claims to child autonomy exist in tension with a protective duty on the part of the state that is also justified, the Supreme Court of Canada has emphasized that the input of a child becomes increasingly determinative as the child matures, such that the principles of welfare and autonomy eventually may collapse altogether and the child’s wishes will become the controlling factor. In particular, the more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when the court is exercising its discretion. If the court is persuaded, (after a careful and sophisticated analysis of the young person’s ability to exercise mature and independent judgment), that the necessary maturity exists, it necessarily follows that an adolescent’s views ought to be respected. [8] e. Experienced family court judges repeatedly have emphasized the value of access to a broad variety of remedial measures, that therapeutic orders can be very effective tools to help broken families -- and children in particular -- transition through emotional turmoil and move forward in a healthier way, and that there are times when no legal solution for a family is possible unless the solution is grounded upon and supported by therapeutic assistance. On the other hand, our courts also recognize that they cannot fix every problem, and that there are risks in making therapeutic orders; e.g., in terms of a child’s refusal to comply, a health care practitioner deciding that a child is capable of independent decision making such that the practitioner cannot override the child’s refusal, and attempts at therapeutic intervention failing for other reasons – any or all of which may indicate that the making of such an order likely would produce a situation that is impractical, costly and/or an exercise in futility. [9] f. Our courts also recognize that forcing children to engage in therapeutic processes against their will may not only be futile but harmful. [10] g. A helpful list of considerations, in relation to the exercise of a court’s discretion to make such therapeutic orders, may include the following: i. Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed? ii. Is there compelling evidence that the counselling or therapy would be beneficial to the child? iii. At what stage is the therapeutic order sought? (For example, is the order sought on a motion based on potentially incomplete evidence or a trial based on a full evidentiary record?) iv. Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by a recalcitrant parent? v. Is the child likely to voluntarily engage in counselling/therapy? [11]

[12] With all of the above in mind, I turn to determination of the appropriate outcome of application of those principles to the particular circumstances of this case.

Application

[13] In making my decision, I have had regard to the complete list of “best interest” factors for consideration set forth in s.16(3) of the Divorce Act, supra, and s.24(1) of the Children’s Law Reform Act, supra, and nothing in these reasons or what I might fail to address expressly hereafter should suggest otherwise.

[14] However, it seems to me that a number of those listed factors have little or no relevance to the present case, and that the most relevant considerations for present purposes are:

a. Ryan’s needs, given his age and stage of development; b. the nature and strength of Ryan’s relationship with each of his parents; c. each parent’s willingness to support the development and maintenance of Ryan’s relationship with the other parent; d. the history of Ryan’s care; e. Ryan’s views and preferences, giving due weight to his age and maturity; f. the plan proposed by the Applicant for Ryan’s therapeutic care; and g. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, (particularly with one another), on matters affecting Ryan.

[15] In my view, consideration of such factors overlaps significantly and not surprisingly with the list of considerations set forth in Leelaratna v. Leelaratna, supra. However, I will comment on those individual legislatively-mandated considerations before then returning to Justice Audet’s helpful and focused framework for approaching my ultimate determination as to whether the relief sought by the Applicant should be granted.

[16] Having regard to the above mandated “best interest” factors listed above:

a. In terms of Ryan’s needs, given his age and stage of development, the evidence before me suggests that Ryan’s needs, (as someone who will be reaching the age of majority in approximately 10 months, and whom OCL counsel indicates to be a well-spoken young man, able to articulate reasoned views he independently has formed), are primarily emotional at this point. In particular, while his material needs are being met, and he appears to have a number of social outlets, (in terms of athletics and peers in whom he is able to confide), there seems to be no dispute that Ryan is experiencing feelings of anxiety, depression, anger and frustration, as well as academic struggles which may or may not be related to his emotional challenges. Experience suggests that some portion of those challenges may not be atypical of many teens on the cusp of reaching their age of majority. However, Ryan himself indicates that some of those negative feelings are centred on his father, and Ryan’s perception, (whether accurate or inaccurate), of his father’s behaviour at the time of his parents’ separation and thereafter. The relief sought by the Applicant clearly is designed to address such concerns, and its outcome is certainly intended to benefit Ryan; i.e., by giving him tools that might help him to address and resolve, in a positive way, the rift that has developed between Ryan and his father. However, I think there are legitimate concerns as to whether such intervention, in the form of assistance mandated by the court despite Ryan’s confirmed independent and reasoned wishes, actually might be counter-productive in that regard; i.e., in terms of exacerbating rather than alleviating Ryan’s emotional challenges and corresponding needs. Certainly, Ryan himself has indicated in no uncertain terms that court-ordered counselling/therapy, at the request of the Applicant, will simply aggravate and augment the feelings of anger and resentment Ryan currently has for his father, thereby making it harder for Ryan to achieve any positive resolution of his feelings in that regard. In other words, I think there is significant evidence indicating that granting of the requested relief might very well do more harm than good in terms of addressing Ryan’s needs, and bringing about a positive father-son reconciliation. b. As for the nature and strength of Ryan’s relationship with each of his parents: i. It seems Ryan has resided with his mother continuously from birth, and that they generally enjoy a sustained and positive relationship. However, I also take into account the possibility that the Respondent’s views about the Applicant may be influencing Ryan directly or indirectly, (a possibility addressed in further detail below), as well as evidence indicating that the Respondent’s stated efforts to encourage a relationship between Ryan and his father have become something of an irritant to the mother and son relationship from Ryan’s perspective. ii. Ryan himself confirms that he enjoyed a positive and engaged relationship with his father prior to separation, and no one disputes that the current relationship between Ryan and his father is strained, with interaction between them having become more difficult to the point where there now has been almost no contact whatsoever between them for approximately 14 months. On the one hand, such evidence suggests the existence of a positive influence in Ryan’s life that may benefit Ryan again if the father-son relationship is capable of being salvaged. On the other hand, (and as discussed in more detail below), our courts generally are sensitive to the frequent need for a gradual return to parent-child interaction after an extended period of estrangement; i.e., that attempting to force an abrupt return to such interaction for prolonged periods, (especially in situations where the minor in question is reluctant to engage with the estranged parent), may be unhelpful. iii. In terms of each parent’s willingness to support the development and maintenance of Ryan’s relationship with the other parent, there was no suggestion that the Applicant in any way seeks to undermine the relationship between Ryan and his mother, and I accept the Respondent’s evidence that she has done and will do what she can to support and encourage a relationship between Ryan and his father. In relation to the latter, I am influenced not only by the Respondent’s affidavit evidence, (which in many respects is subject to the usual challenge of discerning the truth in a context of competing and contradictory “he said - she said” party affidavits), but by the corroboration offered via the email the Respondent sent to her children and copied to the Applicant, (expressly stating her support for and lack of opposition to a relationship between the children and their father), and – most importantly I think - Ryan’s independent indications of awareness and understanding that both his parents want him to engage in the proposed reunification counselling/therapy. On the one hand, that arguably may suggest an environment where the proposed reunification counselling/therapy is more likely to succeed; i.e., insofar as the proposed counselling/therapy would not be taking place in circumstances where one parent would be working behind the scenes to undermine its success. On the other hand, if the Respondent is not the reason for the current estrangement and complete lack of contact between Ryan and the Applicant, in my view that alone gives rise to a reasonable inference that the current situation stems from Ryan’s own negative thoughts, views and preferences in relation to his father, and that Ryan’s sentiments in that regard are strongly held. iv. In relation to the history of Ryan’s care, I think it significant that Ryan apparently has rejected past suggestions and encouragement from the Respondent that he pursue counselling on an individual basis, and that Ryan similarly rejected such possibilities when they were raised again by OCL counsel. In other words, Ryan is not only resistant to counselling/therapy focused on reunification with his father, but also to the prospect of formal counselling per se. If Ryan could not be persuaded as to the benefits of such therapeutic assistance even when it would not take the form of counselling involving his father and promoted by his father, it seems even less likely that Ryan can or will be persuaded to engage in the counselling/therapy being sought by the Applicant on this motion. v. As for Ryan’s views and preferences, these have been described in detail above. Fundamentally, however, Ryan has made it very clear through OCL counsel that he does not want to engage in the contemplated reconciliation counselling/therapy, that he will not engage or participate actively in any such counselling/therapy even if forced to attend sessions physically in compliance with a court order, and that any such order and forced attendance, brought about at the request of the Applicant, will just aggravate the feelings of anger and hostility Ryan has towards his father. In my view, such clearly stated views and preferences are entitled to significant respect and weight, in the particular circumstances of this case, as Ryan has reached a stage where those views and preferences should be largely determinative of this motion. Without limiting the generality of the foregoing: 1. Again, Ryan is approximately 10 months shy of attaining his age of majority; an age, in Ontario, where persons are legally presumed to have reached the stage of maturity sufficient for fully autonomous decision making. 2. In my view, it also needs to be borne in mind that the relief being requested by the Applicant is not something capable of discrete completion shortly after the making of the requested order. Rather, the relief sought inherently contemplates implementation and execution over time, with every passing week or month in that regard taking Ryan closer and closer to 18th birthday, such that his views and preferences progressively should be entitled to more and more weight. 3. I do not have the benefit of having seen and heard from Ryan directly. However, counsel appointed by the OCL, (who is not in the position of advocating one outcome or the other, and whose views as to Ryan’s maturity are in my view inherently free from bias and entitled to considerable respect), [12] has met with Ryan repeatedly and found that his expressed views, preferences and intentions in relation to his father and the proposed counselling/therapy have been consistent, clear and independent. Those views and preferences also were not arbitrary or reckless, but the subject of thoughtful consideration/reflection and reasoned explanations. In other words, while others might disagree with Ryan’s views and preferences, in my view they are not irrational or inherently unreasonable. 4. Having considered the matter, I also think there are no readily apparent ways in which Ryan might be convinced to co-operate, in terms of active and meaningful engagement in the proposed therapy/counselling. In that regard, he already has had the benefit of repeated verbal and written encouragement from his mother, and the opportunity to speak numerous times with independent counsel appointed by the OCL, without such discussions changing his considered views and preferences. In such circumstances, I think it would be mere hubris to think that a different outcome would be secured by a direct but isolated meeting with a judge. In particular, Ryan already has indicated, in a manner reflecting his maturity, that he will respect the court’s authority and comply with a formal order from this court requiring his physical attendance as judicially directed. Ryan nevertheless also has indicated, with candour, that such physical attendance will not change his views and preferences when it comes to active engagement or participation in the counselling requested by his father. vi. As for the plan proposed for Ryan’s therapeutic care, I think it too presents a number of legitimate concerns. In that regard, I do not accept Respondent counsel’s suggestion that the requested order would permit Ms DeVeto to limit or control the evidentiary basis on which any further motions would be decided; i.e., as the proposed order contemplates a report from Ms DeVeto but does not expressly suggest any constraints on the parties filing additional evidence, and the court inevitably would retain its authority and jurisdiction to act as final arbiter of what might be in Ryan’s best interests where the parties disagree. However, I do have other concerns. Without limiting the generality of the foregoing: 1. I am troubled by the indication, (not disputed by the Applicant), that the proposed counsellor/therapist Ms DeVeto requires, as a precondition of embarking on the proposed reconciliation therapy, immediate implementation of a parenting time arrangement that would require Ryan to start seeing his father each Wednesday from 5:00pm to 8:00pm and each Sunday from 1:00pm to 8:00p.m., despite Ryan’s age, maturity, views and preferences, and despite Ryan and his father having had little to no contact or interaction with each other since March of 2022; i.e., a period of approximately 14 months. Such a framework for reconciliation therapy might very well be appropriate and readily workable where all concerned are voluntarily committed to the program, but I think the suggestion inherently problematic in these particular circumstances. In my experience, and based on my review of the authorities dealing with such matters, it is rare for the court to mandate parenting time between a parent and a mature teenager who indicates that such parenting time is neither desired nor welcome, especially after a lengthy period of non-contact reflecting the independent wishes of that teenager. Such teenagers are inclined to “vote with their feet”, rendering court orders in that regard largely unenforceable and impractical. In this case, Ryan has made it clear that he will refuse to attend any counselling session or sessions with his father; i.e., even in controlled circumstances where the counsellor/therapist would be present and available to act as a buffer or facilitator. The logical conclusion is that Ryan, a fortiori, most definitely will refuse to engage in any “one-on-one” parenting time with his father for the time being in the absence of any such buffer or facilitator; e.g., unless and until his feelings towards his father have first been modified by some degree of prior counselling or the passage of time, to a point where Ryan is ready to voluntarily embrace and embark upon such parenting time. I therefore am inclined to agree with the Respondent’s view that attempting to implement father-son parenting time immediately, prior to any degree of therapeutic counselling, effectively would put the proverbial “cart before the horse” in this particular case. 2. I also am troubled by the proposed plan’s repeated provision for “emergency motions” effectively preauthorized as such by the court; e.g., “emergency” motions to resolve party disputes about a wide variety of matters including either party’s failure to pay any apportioned share of Ms DeVeto’s retainer requests or accounts, either party’s failure to agree on parenting time between Ryan and his father in accordance with Ms DeVeto’s recommendations, either party’s failure to bring Ryan to scheduled appointments as required by Ms DeVeto or comply with any terms of the court’s order, and/or Ms DeVeto’s inability to continue with the contemplated reconciliation therapy. In that regard: a. For reasons already outlined, I think it likely that there will be such disagreements about parenting time between Ryan and the Applicant, and occasions where a party (most likely the Respondent) effectively will fail to bring Ryan to a scheduled counselling/therapy appointment – if only because he independently may express reluctance and/or a refusal to attend a particular appointment. b. Given the history of this matter, involving past and/or present animosity between the parties and a demonstrated inability to communicate, I think there is every reason to believe that any such disagreements and failures encountered during implementation of the contemplated counselling/therapy arrangement would result in further litigation. c. The plan’s provision for “emergency motions” effectively preauthorized by the court no doubt reflects a realization that the window for the court-mandated implementation of the reconciliation therapy desired by the Applicant is closing. Again, Ryan will attain his age of majority in approximately 10 months, and all concerned acknowledged and agreed during the hearing before me that any court-ordered arrangement correspondingly would be time-limited, insofar as it necessarily would terminate on Ryan’s 18th birthday when he unquestionably will have the legal authority to make his own fully autonomous decisions in that regard. From the Applicant’s perspective, time therefore is of the essence. However: i. We currently live in a world of limited court resources, and our court is still trying to address a post-pandemic backlog of parties eagerly waiting to have their matters heard. As I indicated to counsel during the course of submissions, I was struck by repeated indications, during the time I spent in the London Family Court Branch last week, that motions deemed “urgent” many months ago, and in one instance as far back as December of 2021, were only now coming on for hearing. ii. In such a world, I am not inclined to give motions in the nature of those described in the Applicant’s proposed plan of counselling automatic priority over other pressing matters; i.e., by pre-emptively deeming them to be motions of an “emergency” nature meriting an immediate hearing. I can readily think of various other applications and motions, (e.g., child protection applications, motions to authorize urgently needed medical treatment for a child in circumstances of parental disagreement, motions to prevent the imminent unilateral removal of a child from the court’s jurisdiction, and motions to secure the return of a child in accordance with a prior court order, to name but a few), more deserving of that characterization. iii. In such a world, where particular motions deemed to be “urgent” by a judge are not heard for many months, or even more than a year, just one litigated disagreement during the course of the contemplated plan of counselling proposed by the Applicant therefore might very well “run out the clock”, in terms of the time remaining before Ryan’s 18th birthday. One can and should lament such practical realities but they remain realities just the same, and represent another factor likely to render the Applicant’s plan for reunification counselling impractical and ineffective at this point. [13] vii. Finally, in relation to the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, (particularly with one another), on matters concerning Ryan, I already have addressed this concern and its likely implications in my earlier comments. No one seemed to dispute that the Applicant and Respondent have difficulties communicating with each other. (Certainly, that impression was underscored by the several accusations and counter-accusations set forth in the affidavit material; e.g., with each party attributing the current lamentable rift between Ryan and his father to the other party’s unreasonable behaviour.) Similarly, no one disputes that Ryan and his father are not communicating, and have not communicated since March of 2022 apart from some words exchanged at the funeral of the Applicant’s father. In such circumstances, I think it almost inevitable that there are likely to be disagreements, failures and perceived order compliance issues, and resulting further litigation, in relation to a court order mandating the counselling arrangement and ancillary terms proposed by the Applicant.

[17] Distilling and to some extent revisiting such considerations via the “question and answer” framework adopted by Justice Audet in Leelaratna v. Leelaratna, supra, in relation to proposals for such a court ordered therapeutic process:

a. Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed? No expert evidence was tendered in relation to the Applicant’s motion. In my view, however, the presented evidence “otherwise” establishes that the family dysfunction in this case is one appropriately characterized as reasonable estrangement between father and son, (e.g., having regard to the emphasis by Applicant’s own counsel that there is no allegation of parental alienation being made, and OCL counsel’s indication that Ryan’s reasoned views are independent), and the cause of that estrangement clearly seems grounded in Ryan’s feelings of anger and resentment towards the Applicant, based on Ryan’s perception that the Applicant’s conduct at the time of the parties’ separation and thereafter was inappropriate. For purposes of the motion, I am satisfied that the contemplated reunification therapy would focus on addressing such issues, in an effort to help Ryan and the Applicant move beyond them and resume a more positive relationship. b. Is there compelling evidence that the counselling or therapy would be beneficial to Ryan? I readily accept that such reunification counselling/therapy may be extremely beneficial to a child in many cases. In this particular case, however, I am not satisfied that the evidence of Ryan probably benefitting from such mandated therapy is compelling. To the contrary, I am persuaded by Ryan’s clearly expressed views that an order obtained by the Applicant, compelling Ryan to attend such counselling/therapy, despite Ryan’s clearly indicated views and preference to the contrary, and his stated intention not to engage or actively participate during such attendances, probably will only serve to increase the anger and resentment Ryan already feels towards his father. Such an outcome obviously would be harmful rather than beneficial to Ryan. c. At what stage is the therapeutic order sought? (For example, is the order sought on a motion based on potentially incomplete evidence or a trial based on a full evidentiary record?) The order requested by the Applicant is being sought by way of a motion, and therefore on the basis of an evidentiary record that inherently is not as fulsome as that which might be available after a trial. However, no one suggested that a trial to determine the issue would be appropriate or even feasible; e.g., having regard to the associated cost, and the reality that Ryan almost certainly would reach his age of majority before the matter ever came to trial. In my view, the more relevant and pressing aspect of the “stage” at which the therapeutic order is being sought relates to Ryan’s age. Again, only 10 months or so remain between now and Ryan’s 18th birthday. Even if I granted an order today mandating such therapy/counselling, it presumably would take some amount of time to complete the necessary arrangements to formally and financially retain Ms DeVeto, and to make mutually convenient arrangements for initial counselling sessions. However, for the reasons already noted above, the process also could easily reach an impasse incapable of court resolution, for scheduling reasons, before much if not all of the remaining time before Ryan’s age of majority has expired. In short, the Applicant’s delay in bringing this motion before March of this year makes the probability of a successful therapeutic process less likely. d. Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by a recalcitrant parent? The Applicant in this case unquestionably would be fully committed to the counselling process he desires. I nevertheless think there realistically is reason to question whether the Respondent would be as meaningfully engaged in the process. In that regard, I do not doubt indications of the Respondent’s belief that a relationship between the Applicant and Ryan should be encouraged. Rather, the Respondent also candidly has acknowledged a conflicting desire on her part to support her mature son’s independent views and preferences; an inclination which seems likely to make the Respondent less committed to the counselling process if Ryan continues to express reluctance and resentment in that regard. In my view, a passing judicial exhortation seems unlikely to override that acknowledged maternal impulse if the Respondent is confronted with ongoing resentment and reluctance from Ryan in relation to a mandated counselling process, especially as Ryan gets closer to his age of majority. e. Is Ryan likely to voluntarily engage in counselling/therapy? For reasons already discussed at length, I think the answer to that question is clearly “no”; i.e., that Ryan will physically attend but not actively participate or engage in any mandated counselling/therapy, which will continue to foster additional anger and resentment on his part. In particular, I think Ryan’s resentment that his views, preferences and autonomy are not being respected will only mount as he approaches his legal age of majority. As already noted, in my view, Ryan’s views and preferences are largely determinative of this motion, given his age and apparent maturity.

Conclusion

[18] Having considered the matter in detail, with due regard to all the factors addressed above, I am not persuaded that granting the relief requested by the Applicant would be in Ryan’s best interest.

[19] Such factors and considerations obviously cannot be weighed with mathematical precision. On balance, however, I think it reasonably clear that the benefits of mandating such counselling/therapy in this case are significantly in doubt, and that the Applicant’s proposal actually is likely to prove impractical/unworkable and indeed counter-productive in terms of promoting its desired outcome of father and son reconciliation.

[20] My decision in that regard makes it unnecessary to address the additional specifics of the requested order; e.g., in relation to sharing/apportionment of the associated cost of such counselling/therapy.

[21] The Applicant’s motion is dismissed accordingly.

Costs

[22] Counsel indicated at the end of the hearing before me, in response to my questions, that they had not discussed the matter of costs; e.g., having regard to the largely binary possible outcomes of the requested relief being granted or not granted.

[23] I would urge the parties to resolve the issue of costs without having to incur further legal expense in litigating that issue. However, if the parties are unable to resolve cost issues associated with the motion:

a. The Respondent may file written submissions on costs, limited to a maximum of four pages, (not including any bill of costs or offers to settle), within two weeks of the release of this endorsement. b. The Applicant thereafter may file written responding submissions on costs, similarly limited to maximum of four pages, (not including any bills of costs or offers to settle), within two weeks of receiving the Respondent’s initial written submissions on costs. c. The Respondent thereafter may file written reply submissions on costs, limited to a maximum of two pages, within one week of receiving the Applicant’s responding written submissions on costs.

[24] If no written submissions on costs are received within two weeks of the release of this endorsement, no costs of the motion shall be awarded.

Justice I.F. Leach Date: May 18, 2023

Footnotes

[1] As I noted (and Applicant counsel emphasized) during the course of submissions, the relevant email is not devoid of other content which arguably undermines the effectiveness of such comments; e.g., insofar as the Respondent directs other comments to the Applicant, including remarks indicating that the Applicant has “hurt” the children, and that the Respondent does not want to be “blamed” anymore for the Applicant’s estrangement from the children. In my view, however, the overall tenor and content of the email make it clear that the Respondent had made and was again making it clear to the children that she supported and was not standing in the way of a relationship between the children and their father.

[2] I note in passing that, absent consent of the parties, counsel appointed to represent a child is not permitted to express the views and preferences of a child without complying with the usual rules applicable to the presentation of evidence. See Official Guardian v. Strobridge (1994), 18 O.R. (3d) 753 (C.A.), at paragraphs 35-36. However, when the parties do give their consent in that regard, the court may receive and consider such indications of a child’s views and preferences in that alternative manner. See, for example, Martin v. Bonnell, 2021 ONSC 7755, at paragraph 31.

[3] See A.M. v. C.H., 2019 ONCA 764, at paragraph 51.

[4] See the Divorce Act, supra, at ss.16(1), (2) and (3), and the Children’s Law Reform Act, supra, at paragraph 24(1), (2) and (3).

[5] See the Divorce Act, supra, at s.16(3)(e), and the Children’s Law Reform Act, supra, at s.24(3)(e).

[6] See Manitoba (Director of Child and Family Services) v. C.(A.), [2009] 2 S.C.R. 181, at paragraphs 82, 87 and 92-93; A.M. v. C.H., supra, at paragraph 65.

[7] See Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.), at paragraph 13; Manitoba (Director of Child and Family Services) v. C.(A.), supra, at paragraphs 82, 87 and 92-93; A.M. v. C.H., supra, at paragraphs 66-67.

[8] See Manitoba (Director of Child and Family Services) v. C.(A.), supra, at paragraph 87.

[9] See Stefureak v. Chambers, [2004] O.J. No. 4253 (S.C.J.), at paragraph 64; Jenkins v. Jenkins, [2010] O.J. No. 1943 (S.C.J.), at paragraph 135; Leelaratna v. Leelaratna, 2018 ONSC 5983, at paragraph 38; and A.M. v. C.H., supra, at paragraphs 72-73.

[10] See, for example: Kaszap v. Volk, 2019 ONSC 4162, at paragraph 15; V.L. v. M.L., 2019 ONSC 7367, at paragraph 124; and S.P. v. B.P., 2020 ABQB 331, at paragraphs 71-72.

[11] See Leelaratna v. Leelaratna, supra, at paragraphs 68-69; a list compiled by Justice Audet based on the decision of Justice Jarvis in Testani v. Haughton, 2016 ONSC 5827, supplemented by her own additions. In this case, that particular list was relied upon by counsel for the Applicant, counsel for the Respondent and counsel for the OCL; i.e., all concerned agreed that the list provided a useful aid to the exercise of court discretion in relation to such matters, although they disagreed as to the outcome that should follow from a consideration of such matters.

[12] I am mindful of authority that courts need to be cautious in relying on evidence of willingness or unwillingness to engage in counselling when the only evidence in that regard comes from a “favoured” parent; e.g., see Leelaratna v. Leelaratna, supra, at paragraph 78. However, that is not the situation in this case.

[13] In that regard, I am mindful of the Applicant’s indications that he has been requesting such reconciliation counselling for years, (i.e., “since Ryan was 14 years old”), without securing any agreement from the Respondent in that regard, and that it was and is his position that such therapy for the family “should have begun immediately” following the parties’ separation, as that would have been in the best interests of the children. However, there was no explanation offered as to why the Applicant nevertheless waited until March of this year to bring this motion. In any event, all concerned are faced with the reality that the court is only now being asked to consider the granting of such relief.