Ontario Court of Justice
Date: 2023 11 15 Court File No.: 12/10815
Between:
B.J. Applicant
— AND —
D.M. Respondent
Before: Justice Susan Sullivan
Heard on: October 25, 2023 Reasons for Judgment released on: November 15, 2023
Counsel: Aaron David, for B.J. D.M., Self-Represented Tammy Law, Counsel for the Office of the Children’s Lawyer
Introduction
[1] This is the court’s ruling with respect to B.J.’s (the mother’s) motion in which she requests an order that she, D.M. (the father), and S.M. (born [...], 2009) attend and participate in family reunification / reintegration therapy with either Renew Supervision Services or Toronto Family Therapy and Mediation (Joanna Siedel), with terms.
[2] On August 28, 2023 this court set the motion date of October 25, 2023. It was further ordered that B.J.’s motion materials shall be served by September 13, 2023 and that D.M.’s and the Office of the Children's Lawyer’s responding affidavit evidence be served by October 4, 2023.
[3] B.J. and the Office of the Children's Lawyer complied with deadlines ordered; before the court is B.J.’s affidavit dated September 12, 2023 and Lauren Barlas’ affidavit dated October 3, 2023. Ms. Barlas is the Office of the Children's Lawyer clinician assigned to assist Tammy Law, counsel for S.M. B.J. did not provide any reply affidavit evidence.
[4] D.M. did not serve and file responding materials.
[5] D.M. is opposed to B.J.’s request. He submitted that:
(a) There is nothing wrong with S.M. S.M. is doing fine. He is excelling in school. (b) S.M. is intelligent and knows he can see his mother whenever he wants. (c) The only influence he has exerted over S.M. is in relation to him attending school. (d) Counselling will not work if it is forced upon S.M. He can’t be forced to communicate with someone he doesn’t want to communicate with. (e) If he were to force S.M. to do something he does not want to do, S.M. may resent him and this would impact their relationship. (f) On his own time, S.M. will eventually and naturally reconnect with his mother.
[6] The Office of the Children's Lawyer is also opposed to B.J.’s request, based on S.M.’s stated views and preferences, which have been consistent and strongly held; he has been clear that he does not want to have a relationship with his mother. While his views may not be independent, Ms. Law submitted that given his age and level of maturity, the court should give his views significant weight.
Facts
[7] B.J. and D.M. married on March 15, 2009.
[8] S.M. was born [...], 2009.
[9] B.J. and D.M. separated in June, 2012.
[10] Following separation, S.M. resided primarily with B.J.
[11] In 2012, B.J. commenced a court application. The Office of the Children's Lawyer was involved and made recommendations. On April 28, 2016 Justice Weagant made a consent final order that provided:
(a) B.J. shall have full and final custody of S.M. She shall consult with D.M. on all major decisions regarding the child’s health, education, and religion. She shall make the final decision. (b) S.M.’s primary residence shall be with B.J. (c) A parenting schedule for D.M.
[12] In or about 2018, B.J. picked S.M. up from D.M.’s care, at S.M.’s request. S.M. claimed that he was being physically abused by his father and that he was afraid. S.M. advised his mother that he would never go to another visit with his father again.
[13] In 2021, S.M. began participating in day visits with his father which occurred once every few months.
[14] According to B.J., while S.M. resided primarily with her, they maintained a very positive and loving relationship.
[15] S.M. has always struggled socially, and these issues became extremely problematic in 2018. As a result of ongoing social difficulties with peers and teachers, B.J. changed S.M.’s school from [name removed] Public School to [name removed] Public School in April, 2018. She also sought out professional assistance for him. Dr. Robin Alter, clinical psychologist with Blue Hills Child and Family Centre completed a comprehensive psychological assessment of S.M. in April/May 2018. Her report was released on June 7, 2018. Dr. Alter made a number of findings: S.M. had low ratings in the area of intellectual and school status (12th percentile), physical appearance (8th percentile), and obsessions and compulsions (93rd percentile).
[16] S.M. continued to have difficulties at school. He regularly acted out and struggled socially. As a result, in 2020 she removed S.M. from [name removed] Public school and opted to home school him. She ensured that S.M. participated in regular social activities with other children and parents who were homeschooling their children. This group was an excellent support for both B.J. and S.M. S.M. quickly took to home schooling and his social skills and self-confidence changed for the better. He made a number of friends, which he did not have prior.
[17] A few months into the COVID-19 pandemic, B.J. noticed significant changes in S.M. The first noteworthy change in attitude was that S.M. began to refuse basic hygiene. B.J. encouraged him to brush his teeth and take showers, but he would not do so. This resulted in arguments and conflict between them. He also became more defiant about the rules of the home. For example, he was not allowed to bring food and drinks upstairs, which he did, and following doing so, there would be verbal conflict between them.
[18] B.J. tried to discipline S.M., but this led to more conflict. For example, she took his phone away. S.M. became extremely upset, raised his voice, and yelled at his mother. On another occasion, she turned off the Wi-Fi. This angered S.M. to levels B.J. had not previously experienced. He yelled at her that he would put her in jail and he knew how to do this.
[19] This period was extremely difficult for B.J. She felt hopeless and overwhelmed. She told S.M. that she would be asking his father to take him for a short period. She believed that S.M. would change his behaviour as a result.
[20] On March 26, 2022, S.M. went to stay with his father. Initially, S.M. called his mother every night so that he could sleep. According to B.J., the plan (between B.J. and S.M.) was that S.M. would stay with D.M. until April 7, 2022. They discussed that B.J. had found a joint therapist for the two of them. S.M. presented as happy about this plan.
[21] On April 7, 2022, S.M.’s behaviour and communication again changed. He began telling his mother that he did not want to talk to her because he believed that she had kicked him out of her home and did not care about him. His communication with his mother became more unpleasant. He made a number of comments, including:
(a) “I don’t want to end up like you, toilet cleaner.” (B.J. cleaned homes for a living). (b) “How will you feel when your only child doesn’t want to be with you?” (c) “No wonder why you are alone for so many years.” (d) “You should go back where you came from.”
[22] When S.M. spoke with B.J. on the telephone, she could hear that she was on speaker phone. When S.M. made comments like those above, she could hear D.M. laughing in the background. On other occasions when they spoke, she could hear D.M. making comments in the background.
[23] B.J. made efforts to enforce the April 28, 2016 final order:
(a) In July, 2022 she went to the courthouse in Newmarket. She was told that the existing order was police enforceable. (b) In August, 2022 she went to a police station and spoke with Sergeant Wayne Young. She was told that the final order was not police enforceable. (c) She sent messages to D.M. asking for S.M. to be returned home. He refused.
[24] In August, 2022 D.M. commenced a motion to change.
[25] On November 15, 2022 this court requested the involvement of the Office of the Children's Lawyer.
[26] Initially, D.M. did not cooperate with the Office of the Children's Lawyer. On June 7, 2023 this court ordered, in part, that D.M. shall permit Ms. Law and the clinical investigator to attend his home on June 8, 2023 at 4:00 p.m. to conduct an observation visit between him and S.M., and that he shall permit and facilitate Ms. Law and the clinical investigator to conduct an observation visit between S.M. and B.J. on June 15, 2023 at 4:00 p.m.
[27] Generally, with respect to S.M.’s views and preferences, Ms. Barlas advised:
(a) S.M. does not wish to participate in reunification or reintegration therapy. (b) S.M. has consistently and strongly stated that he does not wish to have contact with his mother, and he has repeatedly indicated his strong rejection of her. (c) However, he did say that if the court ordered contact with his mother or reunification therapy, he would grudgingly participate.
[28] Ms. Barlas provided information as to what was said at the following meetings (which were also attended by Ms. Law), to provide important context:
(a) Meeting with the principal, Mr. Deboran of S.M.’s school, [name removed]; (b) Meetings with B.J. on March 27, 2023 and May 19, 2023; (c) Meetings with D.M. on March 27, 2023 and May 9, 2023; (d) Observation visit between B.J. and S.M. on June 16, 2023; and (e) Observation visit between D.M. and S.M. on June 7, 2023.
[29] Ms. Barlas and Ms. Law also met with S.M. privately on April 13, 2023; April 24, 2023; and July 13, 2023.
[30] Mr. Deboran told Ms. Barlas and Ms. Law that S.M. has some difficulty around social skills and emotional development, for which he is receiving an Individualized Education Plan.
[31] At the meetings with B.J., she provided Ms. Barlas and Ms. Law with an overview that is in keeping with that which she said in her affidavit and summarized above. In these discussions, B.J. also noted that the access phone calls were difficult as D.M. would call her names in front of S.M. and that together they would laugh and bully her. B.J. also advised that she has never said that S.M. cannot visit her, she did not threaten to call the police on him, and she has apologized on many occasions to him about what happened in March, 2022.
[32] B.J. also told Ms. Barlas and Ms. Law that D.M. was abusive to her (physically, emotionally, financially) during their relationship and that D.M. had said that S.M. would be taken away from her when he is older and she believes that is what is now happening.
[33] With respect to the meetings Ms. Barlas and Ms. Law had with D.M.:
(a) During the first meeting, D.M. said that S.M. is doing excellent at school and that there are no concerns with his performance. (b) During the first meeting, when asked to describe his relationship with S.M., D.M. said they were like “buddies”, they talk a lot to each other, they are always together, and S.M. does whatever he does. (c) When D.M. provided a brief overview of his relationship with B.J., he described it as being overwhelmingly negative. He did not have any positive things to say about her and called her an ignorant, vindictive and egotistical person. He also said that she does not have any emotions. (d) D.M. denied being abusive towards B.J. (e) D.M. provided his view of why S.M. no longer wishes to see his mother. He characterized S.M. as having been kicked out by B.J. three times last year. He said he found her actions “ridiculous, hideous, stupid.” He also said that B.J. has threatened to call the police on S.M. (f) D.M. said that S.M. puts B.J. on speaker phone when she calls as S.M. wants him to hear what is being said. He denied swearing at B.J. in the background, but that he “maybe” steps in to disagree with her at times. (g) D.M. said he does not react when S.M. is rude to his mother, and stated, “he can say whatever he wants, what am I supposed to do, discipline him?” (h) D.M. agreed that he “might have” laughed in the background when S.M. made comments. He did not see why this could be an issue. (i) D.M. indicated repeatedly that he will not force S.M. to go or do anything he does not wish to do. This includes visiting with his mother. When asked about what he would do if there were a court order for visits between S.M. and his mother, he said that he would not force S.M. to follow a court order if he does not want to comply with it. He asked, “why would the court force him to see this evil person?” and said, “the court can order what they like, but it’s about what the child likes.” (j) It was evident at their second meeting D.M. had spoken with S.M. about his meetings (the child’s) with Ms. Barlas and Ms. Law. D.M. questioned why they told S.M. that there could be consequences for him should S.M. refuse to comply with a court order. He refused to answer Ms. Law when she asked him why he thought it was appropriate to speak to S.M. about their meetings, claiming that she had “flipped the script”, that these were “cheap tactics”, and that it was “intimidation”. He repeatedly stated that S.M. could just say no to an order, and that it was all “S.M.’s decision.”
[34] With respect to meetings with S.M., Ms. Barlas indicated:
(a) He presented as being open about discussing his thoughts about his parents. (b) He described having a close and enjoyable relationship with his father. He described his father as loving and caring. He expressed love for his paternal grandmother who is residing with him at his father’s home. (c) S.M. was clear that he had nothing positive to say about his mother. Ms. Barlas affidavit states, “He claimed that she did not have empathy, did not enjoy ‘anything’ with her, is unable to get things done, does not solve problems, does not communicate. He said that she is a sociopath. He claimed he had never been emotionally connected with his mother. He said that his mother repeatedly claimed his father was a ‘criminal’ and an ‘abuser’. He said that his father agreed with his assessment of his mother.” (d) He called his mother “B.”. When asked about this, he said he calls her by her name because he does not feel that she acts like a mother. He said that he believes she rejected him and abandoned him in March, 2022. He repeatedly indicated that his mother threatened to call the police on him and his father when they went to pick up his items from the home. When challenged about this statement, he was clear that he believed it was his mother who rejected him first. (e) S.M. also said that his father has shown him communications between him and his mother. (f) He said that he wanted his father to be present when he calls his mother so that his father can hear what she is saying. S.M. said that when his mother said something “ridiculous”, his father would laugh at her although he said his father did not directly attack her or swear at her. He said that he does not want to speak with his mother because she insults his intelligence. (g) S.M. does not believe his mother is genuine about wanting a relationship with him. He said that she is only asking to see him because she would be able to afford a larger house if he lived with her. When he was told that his mother would be happy with just seeing him, he seemed surprised but it did not change his view. (h) S.M. consistently expressed extreme resentment at his mother for keeping him away from school during the pandemic. He disputed B.J.’s claim that she had home schooled him, and attributed malicious intention towards his mother for keeping him from school. (i) At one point, S.M. said that he would like an apology from his mother. However, he also said that he did not believe any apology from her would be sincere. He went back to the narrative that she gives him the silent treatment, that she believes he has a mental disability, and that she is the one who rejected him by kicking him out.
[35] The observation visit between S.M. and his father went very well. However, D.M. attempted to engage Ms. Barlas and Ms. Law in conversation about court in front of S.M. He was told that they would not be engaging in this conversation, however, he made an additional reference to his negative meetings Ms. Barlas and Ms. Law during the visit.
[36] The observation visit between S.M. and his mother was challenging:
(a) S.M. was sarcastic with his mother initially and instigated an argument by asking about his uncle “genius” which led to them talking about his uncle’s intelligence. (b) S.M. perceived anything said by mother as a criticism of his intelligence. (c) S.M. refused to play with any of the activities suggested by his mother, preferring instead to sit on a swing and argue with her. (d) When B.J. tried to lighten the mood by showing S.M. pictures of the time they had spent together, S.M. pretended not to listen to her, but he was clearly interested in the pictures. At one point he asked her if this was, “supposed to win me back to live with you” and claimed that she only remembered the good times but ignored the bad times. (e) It was clear that S.M. had been told about what happened at court because at one point, he questioned his mother about something she allegedly said at court. (f) S.M. also argued with his mother repeatedly: he stated that he did not want to live with her; he blamed her for him not going to school during the COVID-19 pandemic; he claimed his mother was unintelligent; he said his mother called his father names; he said that his mother kicked him out and threatened to call the police on him. S.M. was dismissive of his mother’s attempts to explain. (g) B.J. made attempts to acknowledge things that she should not have said and done, however, S.M. would not accept these explanations and claimed she was lying. She told him she wrote him an apology and gave it to him. S.M. was sarcastic about the letter, asking if she thought this would fix everything. At times, B.J. said things that could be construed as being hurtful when S.M. was rude or confrontational with her. (h) At the end of the visit, S.M. appeared more receptive to B.J. showing him photos of their life together and participated in speaking about some of his memories. However, it was clear that he could not accept any of the explanations given by B.J. that contradicted his own narrative about their relationship.
[37] When Ms. Barlas and Ms. Law debriefed with S.M. about his visit with his mother, S.M. said he did not enjoy meeting with her and he did not like talking to her. He was fixed in his belief that his mother called the police on him and said that she called him a loser. When Ms. Barlas raised that it appeared that B.J. was trying to explain how she perceived what happened, S.M. was unable to accept her explanation. S.M. was also unable to agree that his mother appeared proud of him at the visit. When Ms. Barlas encouraged S.M. to repair his relationship with his mother, he said he just wants to “keep her out”. He told Ms. Barlas and Ms. Law that he would grudgingly participate in reunification therapy if ordered by the court.
Law
[38] In A.M. v. C.H., 2019 ONCA 764, the Ontario Court of Appeal confirmed that the court has jurisdiction to make therapeutic orders, which includes reconciliation therapy. Therein, the court noted:
(a) The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case (para. 47). (b) Judges have broad authority under sections 16 (a) and 16(2) of the Divorce Act and sections 28(1)(a),(b), and (c) of the Children's Law Reform Act to make orders for counselling or therapy (paras. 49-51). (c) Under the Children's Law Reform Act and the Divorce Act, the child's views and preferences are only one factor among many in determining the child's best interests. Consequently, a child's refusal to attend counselling is not necessarily determinative of their best interests (para. 65). (d) Notwithstanding the court's jurisdiction to order therapy, in the case of mature adolescents, a tension exists between their strong claims to autonomy and the duty of the court to act protectively. The 'best interests' standard must be interpreted in a way that reflects and addresses an adolescent's evolving capacities for autonomous decision-making. Their wishes should carry greater weight as their maturity increases, and scrutiny of their maturity level should intensify in relation to the severity of the potential consequences of the treatment or its refusal (paras. 66-68) (e) There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case (paras. 72-74).
[39] In determining whether the court should make an order for reconciliation counselling, the following principles are applicable:
(a) Such orders are to be made sparingly. (b) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)? (c) 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? (d) There must be compelling evidence that the therapy will be beneficial to the child. (e) The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected. (f) 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 the recalcitrant parent? (g) Is the child likely to voluntarily engage in counselling therapy? (h) Resistance to therapy is an important factor but is not the determining factor whether such an order should be made. (i) Where a clinical investigation or assessment is underway, no order should be made pending their conclusion. (j) Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.
See: Testani v. Haughton, 2016 ONSC 5827 at para. 18; Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69.
[40] This list of considerations overlaps significantly and not surprisingly with the best interests factors outlined at section 24(3) of the CLRA.
[41] Sections 24(2) and (3) of the CLRA state:
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[42] Application of the best interests test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child whose well-being is under consideration; "case by case consideration of the unique circumstance of each child is the hallmark of the process". See: Van de Perre v. Edwards, 2001 SCC 60 at para. 13.
[43] The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz. Adult preferences or "rights" do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.
[44] With respect to the weight to be given the views and preferences of children, it is important to consider:
(a) Article 12 of the Convention on the Rights of the Child requires state parties to ensure that children who are capable of forming their own views must be given the right to express those views in matters which affect them and that those views must be given due weight in accordance with their age and maturity: Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, Article 12 (entered into force 2 September 1990). (b) A court must always carefully consider how much weight to give a child’s wishes in accordance with the factors set out in Decaen v. Decaen, 2013 ONCA 2018. At paragraph 42, the Court of Appeal stated that when carrying out this assessment, a court should consider: (i) Whether the parents are able to provide adequate care; (ii) How clear and unambivalent the wishes are; (iii) How informed the expression is; (iv) The age of the child; (v) The child's maturity level; (vi) The strength of the wish; (vii) How long they have expressed their preference; (viii) The practicalities of the situation; (ix) Parental influence; (x) Overall context; and (xi) The circumstances of the preference from the child's point of view. (c) The degree to which the court will follow the wishes of the child will be subject to the judge's discretion as she seeks to determine the child's best interests. See: G.(R.) v. G.K, 2017 ONCA 108 at para. 67. (d) The question of whether a parent has made statements or engaged in conduct that might impact the independence of a child’s views and preferences can certainly be explored at any hearing. See: B. v. C., 2023 ONSC 297 at para. 23. (e) The court should give little weight to a child’s expressed wishes if the evidence indicates that those wishes have been tainted by negative influence, inducements, or alienation exerted by the other parent or any other individual. See Jackson v. Jackson, 2017 ONSC 1566 at para. 61. (f) In J.G. v. C.G., 2023 ONCA 77, the Court of Appeal found that the motion judge erred in giving the children’s views any weight, as the evidence did not support the finding that they had reached their own conclusions free from their mother’s influence.
Analysis
[45] B.J. had been S.M.’s primary caregiver for a vast majority of his life.
[46] Overall, theirs was a close and loving relationship for a significant period of time. I cannot accept S.M.’s comment that he was never emotionally connected with his mother for the truth of its content. I have significant concerns regarding the independence of S.M.’s statements to Ms. Barlas and Ms. Law and this impacts the reliability of what he has said. Also, B.J.’s evidence supports the conclusion that I have made in this regard.
[47] While they resided together, S.M. turned to his mother for support, guidance, and comfort.
[48] While his primary caregiver, B.J. met S.M.’s needs on a regular basis. For example, she adjusted his academic path as required. She ensured that he was assessed by Dr. Alter. She acted as a responsible parent when she attempted to address his challenges that emerged during the COVID-19 pandemic by imposing reasonable consequences for his misbehaviour. She was not perfect when she did so and she acknowledged this at the June, 2023 observation visit as she tried to explain her words and actions to S.M.
[49] I am quite troubled by the following:
(a) S.M.’s reactions to events that occurred when he lived with B.J. are disproportionate to his mother’s conduct. (b) S.M.’s memories and perceptions of his mother are all bad. (c) He devalues his mother. (d) He viciously vilifies his mother. (e) S.M. calls his mother by her first name. (f) His views of his mother are closely aligned with those of his father. (g) He is very inflexible in his position; he cannot be reassured and has no ability to suspend his beliefs to even consider the possibility of another perspective.
[50] It is integral to S.M.’s emotional and psychological well-being that he be given the opportunity to re-establish his relationship with his mother, with professional assistance, while at the same time every effort being made to ensure that his relationship with his father continues and is healthy and positive. It is important for S.M. to realize that it does not have to be an all-or-nothing situation; he can love and spend time with both of his parents (provided they are able to conduct themselves in a way that provides for his physical, emotional and psychological safety, security, and well-being).
[51] If S.M. is not afforded the opportunity to address his significant, disproportionate disdain for his mother, there may be broader, longer-term negative effects on his emotional and psychological well-being. Justice McGee captured this concern in S. v A., 2021 ONSC 5976, when she wrote at paragraph 30:
Whether passively permitted or actively encouraged, a child who rejects a parent is parallelly empowered to reject other important people in his life. He is taught to avoid difficult feelings instead of how to cope with them and to work through them. He suffers an emotional impairment that deprives him not only of the love and protection of a parent, but of a wide array of complex social relationships.
[52] I have grave concerns regarding D.M.’s willingness to support the development of S.M.’s relationship with B.J. and his ability and willingness to meet S.M.’s emotional needs:
(a) He does not accurately perceive and report events. He said S.M. is excelling in school, but the school principal reported otherwise. This propensity to misconstrue and misrepresent events can easily spill over to other issues. (b) He has influenced S.M. to reject his mother, whether deliberately or unconsciously. (c) He engages S.M. in discussions about what he perceives to be B.J.’s significant short-comings. (d) He encourages S.M.’s extremely negative perceptions of his mother. (e) He does not re-direct S.M. when he speaks negatively about B.J. and sees no reason to do so. (f) His modeling for S.M. includes mocking, degrading, and bullying B.J. (g) He overtly or subtly suggests that B.J. is a poor parent and worthy of disdain. (h) He is not concerned about S.M.’s lack of relationship with his mother. (i) He does not appreciate the value of S.M. having a relationship with his mother, both to his current and long-term emotional well-being. (j) He does not encourage S.M. to have a relationship with his mother or to take steps to address barriers to them re-establishing their connection. (k) He is content to allow, and insists, that S.M. be the one who makes the decisions in this case. (l) He lacks respect for the judicial process and does not appear to be willing to comply with orders made, if they are not in keeping with the child’s views. (m) He is not receptive to professionals involved with him when efforts are made to re-direct his skewed views of issues.
[53] The above raises serious concerns about the nature of the relationship between D.M. and S.M. It is not healthy. D.M. is strongly encouraged to engage in the reunification therapy ordered to assist him with developing a more child-focused and balanced approach to the issue of S.M.’s relationship with his mother. Failure to do so could result in further, more intrusive orders of the court.
[54] I am also mindful that at the observation visit, B.J. said things that could be construed as being hurtful when S.M. was rude or confrontational with her. This further confirms that counselling is required; both parents and S.M. need professional guidance regarding how to best approach S.M.’s estrangement from his mother.
[55] With respect to the parents’ plans for S.M., B.J.’s evidence provides a sufficiently detailed proposal regarding reunification therapy and what is to be expected. D.M.’s plan to allow S.M.’s reconnection with his mother to occur organically when S.M. is ready to do so does not meet the child’s needs. If left to his own devices, there is a significant possibility that the reconnection will not occur.
[56] Next, I turn to the very important issue of S.M.’s views and preferences and what weight should be given to them:
(a) It is clearly important for S.M. to meaningfully participate in important decisions made about him. (b) S.M. is 14 years old. (c) While there is no express evidence regarding his level of maturity, and there are concerns regarding his emotional and social development which may impact his level of maturity, I accept that his development in this regard is age appropriate. (d) S.M. has been consistent and clear that he does not want a relationship with his mother, and he does not want to engage in reunification therapy. (e) S.M.’s position is strong. (f) S.M.’s consistent views have spanned a meaningful period of time.
[57] However, when the overall context is considered, along with the profound negative influence exerted by D.M., it is not possible to give significant weight to S.M.’s stated views and preferences. I have listened to what S.M. has said, respect his views, and have paid attention to his stated preferences, but the evidence does not support a finding that he reached his own conclusions free from his father’s influence, therefore, the weight given his views regarding reunification therapy is minimal.
[58] In concluding that it is appropriate to make an order for reunification counselling, I have considered:
(a) This therapeutic order is being sought at the motion stage, and as such there may be potentially incomplete evidence. However, all parties were given meaningful time to prepare affidavit evidence. D.M. did not. As a result, the evidence before the court on this motion is uncontested. As well, the context provided by Ms. Barlas assists in allaying any concerns there may be regarding the completeness of the record. I am satisfied that I have a sufficient evidentiary record to properly consider the relief requested. (b) As outlined above, the cause of the family dysfunction is multi-faceted and cries out for professional intervention. (c) There is compelling evidence that the therapy will be beneficial to the child. It is in his best interests that it be ordered. (d) The order requested has been adequately supported by a detailed proposal identifying prospective counsellors and what is to be expected. (e) B.J. is likely to meaningfully engage in the counselling. It is hoped that this court’s strong judicial recommendation will compel D.M.’s participation and cooperation. (f) It is likely that S.M. will engage in the counselling. He indicated that if it was ordered, he would grudgingly participate. I am also encouraged by his eventual interest in looking at pictures his mother brought to the observation visit. (g) Orders for reconciliation counselling are to be made sparingly. Based on the totality of the evidence presented at this motion, if is clear that this is the exact type of situation in which such an order should be made.
[59] With respect to the payment for the reunification counselling, I am satisfied that this is a special expense per section 7(1)(c) of the Child Support Guidelines. It is a necessary expense in relation to S.M.’s best interests and reasonable in relation to the means of the parents. As noted in this court’s November 15, 2022 endorsement, disclosure related to financial issues remains outstanding. B.J. asks that the reunification therapy be paid equally by both parents. D.M. made no submissions on this issue. B.J. is in receipt of Ontario Works. On November 15, 2022 I terminated D.M.’ child support obligation to B.J. per Justice Weagant’s May 3, 2016 order, as of March 30, 2022. In his May 3, 2016 reasons for judgment, Justice Weagant imputed an income to D.M. in the amount of $50,000 and made findings that D.M. was ‘incredible, unreliable, evasive, and dishonest’ with respect to his financial situation. In the circumstances, it is reasonable to conclude that D.M. has the means to pay half of the reunification therapy. The estimated cost of the therapy is $4,000-$5,000. The entire retainer is not required by either proposed service provider up front.
Order
[60] Based on the totality of the foregoing, order to go as follows:
B.J. and D.M., and the child, S.M. (born [...], 2009) shall attend and participate in family reunification / reintegration therapy (which may include parent coaching/counselling, parent and co-parent education, and any other therapeutic interventions to assist the family to remedy their current difficulties, improve the strained parent-child relationship(s), and assist to implement the court ordered parent-child contact) with either Renew Supervision Services or with Toronto Family Therapy & Mediation (Joanna Siedel), and proceed as follows:
(a) Within (7) days, D.M. shall advise B.J.’s lawyer via email which service provider - Renew Supervision Services or with Toronto Family Therapy & Mediation (Joanna Siedel) - he would like to engage with. Failing a response, the choice shall be B.J.’s and her lawyer shall promptly advise D.M. of her choice via email. (b) Within seven (7) days of either agreeing to the service provider or B.J.’s lawyer advising D.M. of the service provider his client has chosen, the parties shall contact the service provider and provide a copy of this order and these reasons for judgment (if the service provider wants the latter), as well as their completed intake forms. (c) Within fourteen (14) days of the service provider being determined, the parties shall pay the retainer to the service provider. (d) Once the service provider has been determined, the parties shall forthwith schedule their intake or subsequent appointments as directed by the therapist. (e) The parents shall cooperate with the therapist. (f) The therapist may meet with the parties and/or the child individually or jointly. The parties shall fully comply with the therapist's requests in conducting therapy, including but not limited to, ensuring that the child is transported to / from appointments in a timely manner, to exercising parental authority to require the child to attend and cooperate with the therapy sessions and interventions. (g) If after the initial Clinical Intake Consultation (CIC), the family therapy is recommended, the family reunification (reintegration) therapy shall proceed as recommended by the therapist. (h) There shall be no recording of the family therapy unless agreed to by the therapist and all parties. (i) The therapist may make recommendations to the parents, counsel and the Court (e.g., about transitions/transfers protocols, locations, behaviours, pacing of parent-child contact within the determined parenting time schedule, parent communication and child-related information sharing protocols, etc.). (j) The therapist may make recommendations for additional therapists, the removal of a current therapist, or the cessation of a child's individual therapy if these are deemed to be unhelpful to the family therapy. No new mental health professionals shall be permitted to become involved with any member of the family during the duration of the family therapy unless the therapist consents to this involvement. (k) The therapist may communicate, ex parte, with any other professionals they deems necessary to implement the goals of the family therapy (for example, the OCL, Children ' s Aid Society's, educational or medical professionals). The parents shall execute any necessary authorizations to allow for this exchange of information between relevant professionals. (l) The therapist may, at their discretion, share information with other family members participating in the family therapy. (m) The parties shall execute authorizations as requested by the therapist to enable the therapist to receive or provide information about the child in relation to the therapeutic counselling. (n) Neither parent shall discuss any aspect of this order, reasons for judgment or the reunification therapy with the child, nor allow anyone else to do so, except as approved and permitted by the therapist. Counsel and clinical assist appointed by the Office of the Children's Lawyer may do so. (o) If either parent fails to comply with the obligations contained in the reunification therapy agreement, fails to attend for appointments as required by the therapist, fails to pay any retainer request or fees owing to the therapist, fails to bring the child to appointments as required by the therapist, or fails to comply with the terms of this order in relation to reunification therapy, the therapist shall write a brief report jointly addressed to both parties and counsel representing the child through the Office of the Children's Lawyer. Upon receipt of such a report, either party or the Office of the Children's Lawyer may bring a 14B Motion to request an appearance before me. (p) The reunification therapy shall continue for as long as the therapist directs or until a court order is made terminating the reintegration therapy. (q) If the therapist directs that further reunification therapy should not continue, the therapist shall write a brief report jointly addressed to both parties and counsel representing the child through the Office of the Children's Lawyer setting out the reasons for the termination of the reunification therapy, the progress made, and any recommendations as to further reunification therapy or any other therapeutic or clinical intervention. Upon receipt of such a report, either party or the Office of the Children's Lawyer may bring a 14B Motion to request an appearance before me. (r) Fourteen days before the next scheduled court date, the therapist shall write a brief report jointly addressed to both parties and counsel representing the child through the Office of the Children's Lawyer setting out what has transpired to date, the progress made, and any further recommendations they may have. This report shall be provided to the court by the parties by way of attachment to their Briefs prepared for the next attendance.
The goals of the family therapy, shall include, but shall not be limited to the following:
(a) Restoring or facilitating contact between the child and his mother. (b) Assisting the parents to resolve relevant parent-child conflicts. (c) Fostering overall healthy child adjustment. (d) Restoring, developing or facilitating adequate parenting and co-parenting functioning and skills. (e) Developing family communication skills and effective approaches to problem solving; assisting parents to fully understand their child's needs for healthy relationships with both parents and the negative repercussions for the child of a severed or compromised relationship with a parent in their young lives and as adults. (f) Assisting the parents and child to identify and separate the child's needs and views from each parent's needs and views. (g) Working with each family member to establish more appropriate parent-parent and parent-child roles and boundaries. (h) Correcting the child's distortions and providing more realistic perceptions reflecting the child ' s actual experience with both parents. (i) Assisting the child to differentiate self from others, and to be able to exercise age-appropriate autonomy. (j) Assisting the parents to distinguish valid concerns from overly negative, critical, and generalized views relating to the other parent.
The costs associated with the reunification therapy shall be shared equally (50/50) between the parties.
If B.J. seeks costs:
(a) Written costs submissions, not to exceed 3 pages, prepared using 12 pt. font, 1.5. spacing, and a Bill of Costs shall be served and filed by November 24, 2023 at 4:30 p.m. (b) Responding written costs submissions, not to exceed 3 pages, prepared using 12 pt. font, 1.5 spacing, and a Bill of Costs by December 8, 2023 at 4:30 p.m.
Justice Susan Sullivan