Court File and Parties

Ontario Court of Justice Date: 2024 11 29 Court File No.: Toronto FO-23-00044635-0000

Between:

D.L., Applicant

— AND —

J.Q., Respondent

Before: Justice Szandtner

Heard on: November 15, 2024 Reasons for Judgment released on: November 29, 2024

Counsel: Brian Ludmer, for the applicant Stephanie Okola, for the respondent

SZANDTNER J.:

[1] The court heard a motion brought by the applicant (the father) seeking an order that the parties shall immediately engage with a systemic family therapist, to be selected by the applicant for the purpose of family reconciliation therapy with terms.

[2] The respondent (the mother) opposed the motion. Her position is that reconciliation therapy is not in the best interests of the child. (E.)

[3] On August 13, 2024 the court set the motion date of November 15, 2024. The father’s motion materials were due on October 25, 2024. The mother’s responding motion materials were due on November 15, 2024. Both complied with the deadlines ordered. The father also filed a reply affidavit. Both parties were represented by counsel at the motion and made oral submissions.

Background

[4] The parties began cohabitation in November 2009. Their only child E. was born in 2009. The parties separated on April 22, 2020.

[5] The parties executed a Partial Separation Agreement (Parenting) dated September 1, 2020 and a Partial Separation Agreement (Parenting) dated January 6, 2021. A further Separation Agreement dated April 27, 2021 addressed the financial issues, including child support.

[6] In accordance with the Agreements, the parties have joint-decision-making and shared parenting of E. on a 6 overnights/8 overnights parenting schedule. Further, under the Amended Agreement, the parties agreed that they would actively facilitate third party professional involvement for the father and E. at the father’s request.

[7] The father has not had parenting time with E. starting April 1, 2022. Since May of 2022, the father has not had any communication, other than phone calls with the child.

[8] On December 4, 2023, the father commenced an Application seeking to enforce the provisions of the Agreement(s) relating to parenting time and decision-making.

[9] On March 19, 2024, the mother filed Answer/Claim seeking a final order for primary residence and sole decision-making for the child, a final order that the father’s parenting time with the child be at her discretion as to location, frequency, duration and level of supervision. She also sought orders relating to travel and documents and a non-removal order.

[10] On April 26, 2024, the parties participated in a case conference.

[11] On June 17, 2024, a motion by the mother was heard seeking the appointment of the Children’s Lawyer for E. The father opposed the appointment of the Children’s Lawyer and consented to a Voice of the Child report.

[12] On June 20, 2024, the court ordered a Voice of the Child report.

[13] On August 13, 2024, the parties participated in a case conference. The father was granted leave to bring a motion for reconciliation therapy on November 15, 2024.

[14] On August 19, 2024 the Voice of the Child report was filed with the court.

[15] The court must answer the following questions:

a) Does the court have jurisdiction to make the temporary order requested by the father? b) If so, is the temporary order requested in the best interests of the child? What should its terms be?

The father’s position and evidence

[16] The father’s position is that the court has the discretion to make the temporary order for reconciliation therapy he requests and that it is in E.’s best interests that the order be made.

[17] The father relies on the following evidence:

a) The parties’ separation agreements are evidence of an agreement between the parties following their separation that they should share parenting time with E. b) The parties’ separation agreements are evidence of a commitment to relying on professional therapeutic supports to assist with co-parenting in the future. c) The father has not seen E. since April 1, 2022. His communication with E. for the past two and a half years has been limited to phone calls. d) The father describes the mother as a gatekeeper who has participated in creating and maintaining a barrier to his participation in E.’s life. For example, she has informed him that he cannot send E. gifts and has failed to inform the father of important issues impacting E. and his important life events (graduation, new school enrolment). e) The father reports that the mother refuse to consider or discuss any solutions to ensure that his relationship with E. is supported. f) The father reports that the mother has giggled when E. has been rude to the father on the phone. She listens in the background and contributes insulting and unkind remarks in the background. g) When the father reached out to the mother in the spring of 2023 to ask for her help to restore his parenting time, she stated that she does not have a positive obligation to support E.’s relationship with their father. h) The mother’s pleadings seek an order that the father’s parenting time with E. be at her discretion as to location, duration, frequency and level of supervision. i) In May of 2022, the mother cut off all forms of communication other than phone calls. In June of 2023, the mother indicated that she does not read the father’s text or email messages. j) The phone calls, when answered by the mother, often involve speaking about adult issues in the presence of, or within earshot of E. The father has sought the admission of an audio recording on August 15, 2022 of a telephone call with the mother and E. reflecting this alleged dynamic. k) The mother reports that the child does not want to see the father because of an art exhibit relating to the loss of the family home in a fire. The opening reception was on May 6, 2022. The base materials for the work came from remains salvaged from the wreckage of the family home. The mother and E. attended the exhibit. The mother has repeatedly chastised the father for the damage and injury this exhibit has caused to E. l) The father has been requesting therapy for years. The mother refuses to participate in family therapy. m) The mother has enrolled E. in the Child and Adolescent Services for Abuse and Trauma program at the Child Development Institute. n) The father denies a history of abuse or family violence in the parties’ relationship. o) The mother is also alienating other extended family members on the paternal side. p) The father has participated in individual therapy. Just prior to separation he was engaged in cognitive behavioural therapy and is still involved to date. He completed individual brief therapy as recommended by the Hospital for Sick Children. He participated in individual therapy from a social worker through Families in Transition for 6 months post separation. q) The mother has not offered any other pathways to improve the father’s relationship with E. r) The mother has never taken any responsibility for any of her actions that have negatively affected his relationship with E. s) The father has written letters of apology to both E. and the mother post separation. t) The father is seeking reconciliation therapy to open the conversation and try to rebuild his relationship with E.

The mother’s position and evidence

[18] The mother is opposing the father’s motion. She relies on E.’s expressed view that they do not want to participate in reconciliation therapy at this time.

[19] The mother relies on the following evidence:

a) For most of the relationship, she was subjected to physical, emotional, financial and mental abuse from the father. E. was also subject to the father’s abusive conduct at a very young age. b) She adopts a democratic parenting style and considers E.’s views and preferences when making decisions for them. c) She encourages the father to communicate directly with E. and does not interfere in their conversations. d) She has not shared information about E. with the father with respect to medical information to respect their right to privacy, to medical and therapeutic care that helps them manage their mental health and their self-identification. e) The mother wants the father to take accountability for the breakdown in his relationship with E. and acknowledge the harm it has caused. f) She is guided by the views and preferences of E. with respect to their father. g) The mother describes E. as extremely intelligent, sensitive and curious. They came out as non-binary in March of 2021. h) The mother describes the father as being dismissive of E.’s emotional needs, of misgendering them and not being receptive to hearing their feelings to bridge the gap in their relationship. i) The mother supports E.’s right to speak to or see their father in a safe way. j) The mother is opposing the introduction of the audio recording of the phone call with the father. k) The mother denies banning E. from seeking extended family members on the paternal side. She believes that E.’s traditions and relationships on their father’s side are important.

Voice of the Child Report

[20] E. participated in two interviews with a clinician in July of 2024 and a Voice of the Child report was submitted to the court. The clinician was asked to elicit E.’s views on contact with their father and participation in therapeutic support focused on their relationship with their father.

[21] The clinician reported as follows:

a) E. presented as an intelligent, articulate, thoughtful and sensitive young person. They were initially reserved but easy to engage in the process. They were responsive to all questions and reflective and thoughtful with their answers. b) E. reports that they are happy and engaged in their high school. They enjoy their friends and extra-curricular activities. c) E. described the period following the separation as 40% with the father and 60% with the mother. Over time, they did not want to have parenting time with the father because they were struggling with their mood and had suicidal thoughts. Their father minimized the suicidal ideation. They had these thoughts in grade 7/8 and are currently in grade 10. They would speak to their therapist if they recurred. d) E. described their father as artistic, manipulative and controlling. The child reports that the father said their mother is the problem and that he has not done anything wrong. The father has tried to villainize their mother to make him look good. e) E. describes their relationship with their father as not good. He was not stable and had mood swings. He got made often and would yell, shout and get into their personal space. He would yell if they did not move fast enough in the morning or forget to do a chore. f) E. is concerned about their well-being during parenting time with their father because in the past they could not return to the mother’s home if they wanted, they could not contact their mother if they wanted, and the father would antagonize him and yell at him and say that they did not deserve to have him as a dad. g) E. was upset about the father’s art exhibit about the house fire. They felt their personal items had been put on display in a negative way and that the father was trying to evoke sympathy for himself. h) E. recalled the father helping them build things and taking them skiing. i) E. recalls the father threatening them and their mother to put them out on the street. j) E. does not want contact with their father based on their current relationship. They don’t want parenting time or any contact. They said their father was often mad and they do not know what he was mad about. They want to feel safe emotionally and have good mental health. k) E. said that they do not want to engage in reunification therapy at this time because they feel that reunification therapy would not fix the issue their father has and would not repair the relationship with their father. l) The father could make it better by not pushing for parenting time. He could acknowledge the mistakes he made and try to change. He could recognize how much he has hurt the family. m) They might have contact with their father in the future, such as contact through text, but they want the father to acknowledge his mistakes, change his actions, stop forcing them to have parenting time and respect their wishes. n) If they felt that their father had changed, they would like the opportunity to have contact with their father in the future. o) The changes they seek are: i) Their father to be less angry. ii) Their father to be more reliable, open to change and work towards being a different person. iii) Their father should take responsibility for his negative actions.

Preliminary Evidentiary Issue

[22] The father sought to have an audio recording of an August 2022 telephone call between the parties admitted into evidence. The mother argues that the audio recording should not be admitted into evidence.

[23] The caselaw with respect to the admission of recording as evidence primarily focuses on balancing the general policy goal of discouraging parents to record each other against the probative nature of the recording itself. Factors such as relevance, reliability, and the probative value with respect to the best interests of the child as the most prominent consideration the court should find admissible. Patel v. Patel, 2023 ONSC 6307.

[24] The court finds that the audio recording is of marginal probative value for the following reasons:

a) The father has not established that the call was not recorded surreptitiously. b) The father has not established that the recording is reliable and that it has not been digitally altered by him. c) The relevance of this recording to issue before the court is low. The court has access to admissible evidence for the purpose of the within motion.

[25] The court finds that the probative nature of the audio recording does not outweigh the general policy goal of discouraging recordings of this nature.

[26] The audio recording is not admissible in this motion.

Legal Considerations

[27] 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 reunification therapy. The court noted as follows:

a) 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). b) Under the CLRA, 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). c) 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 to the severity of the potential consequences of the treatment or its refusal (paras. 66-68) d) 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).

[28] 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 of 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 counsellor 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 or 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 counsellor/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.

[29] Subsection 24(3) of the CLRA sets out a list of factors for the court to consider related to the best interests of the child. It reads as follows:

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; (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 to 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 cooperate 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.

[30] 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. See: Van de Perre v. Edwards, 2011 SCC 60 at para.13.

[31] A court must always carefully consider how much weight to give to the 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 the court should consider:

a) Whether the parents are able to provide adequate care; b) How clear and unambivalent the wishes are; c) How informed the expression is; d) The age of the child; e) The child’s maturity level; f) The strength of the wish; g) How long they have expressed their preference; h) The practicalities of the situation; i) Parental influence; j) Overall context; and k) The circumstances of the preference from the child’s point of view.

Analysis

[32] The court has the benefit of a Voice of the Child report to begin its analysis. This report was based on two interviews with a clinician in July of 2024.

[33] The court finds the following facts upon its review of the report:

a) E. was an engaged, communicative and thoughtful participant in the clinician interviews. b) E. is a thoughtful and sensitive teenager who is successfully engaged in high-school, activities and a social circle. c) E. has negative memories about their father from his past when his family was intact. d) E. has negative memories from their parenting time with their father post separation which affected their mental health. His mental health has since stabilized. e) E. rejected the option of reunification therapy. f) E. wants their father to acknowledge the mistakes he made and try to change. They want the father to recognize how much he has hurt the family. g) E. wants their father to be more reliable, open to change and work towards being a different person. They want their father to take responsibility for his negative actions.

[34] The court makes the following findings of fact with respect to the context of E.’s interviews:

a) E. is 15 years of age. b) E. has not had in-person contact with their father since he was 12 years of age. c) E.’s communication with their father since that time has been reduced to telephone calls. These calls have been sporadic and have at times been in the presence of their mother. d) E. has successfully commenced their own therapy and has been addressing their own mental health needs.

[35] Based on the above, the court finds that E. is a mature teenager who is able to participate in reunification therapy. They understand the therapeutic process, have experience with therapy and are able to express themselves with professional supports. They are successfully engaged in school and social life.

[36] The court acknowledges that E. rejected reunification therapy in their interviews. However, the court finds that E. is clearly seeking outcomes with respect to their father – for example, their father’s acknowledgment of mistakes, recognition of harms, openness to change and taking responsibility for negative actions – which fall squarely into the realm of family therapy. Their wishes will not be realized without in person contact and communication with their father. Their wishes will certainly not be achieved through sporadic phone calls that lack privacy and any therapeutic guidance.

[37] The court finds that E. has identified their need for emotional safety. This is understandable. Once again, the therapeutic context can provide the safe guardrails that they require. Without therapeutic guidance, support and presence, any attempted conversations with their father can and are likely to devolve into disorganized emotional expressions that maintain the current emotional dynamic.

[38] The court finds that the father has taken meaningful steps to address his own issues through therapy. He is not claiming to be perfect or blameless. However, he is correct that the issues derailing his relationship with E. cannot be addressed through his individual therapy alone, particularly where he has no in person contact or regular communication with E.

[39] The court finds that the mother’s behaviour is of concern as follows:

a) She has not provided any evidence of her efforts to support the father’s relationship with E. b) She has not kept the father informed with respect to E.’s graduation or school enrolment. c) She has contested reunification therapy but has not proposed any realistic alternate pathway to improving the broken parent/child relationship. d) She has shut down email and text communication with the father since 2023, leaving him with only telephone calls. This unilateral decision is problematic. First, it makes no sense that she would prefer telephone communication with an individual that she alleges was abusive during their relationship. Secondly, her blocking of emails/texts shuts down functional communication with the father which is essential for co-parenting. e) She supports only telephone contact with E. and their father. She has not attempted to create a routine around this contact or to ensure that E. has privacy for their father’s calls.

[40] The mother has also provided evidence that supports reconciliation therapy:

a) The mother wants the father to take accountability for the breakdown in his relationship with E. and acknowledge the harm it has caused. b) The mother criticized the father for not being receptive to hearing E.’s feelings to bridge the gap in their relationship. c) The mother supports E.’s right to speak to or see their father in a safe way.

[41] Based on the above, the court finds that it is in E.’s best interests to make an order for reconciliation therapy for the following reasons:

a) The current state of the relationship between E. and their father is highly problematic. There has been no in person contact or regular communication for over two years. b) E. has lost their relationship with their father and a connection to their paternal cultural heritage. c) The mother has proposed no alternative pathway to ameliorate E.’s relationship with their father. Her passivity maintains the problematic status quo. d) The father, mother and E. all have the capacity to participate in reconciliation therapy. e) The father, mother and E. all seek a safe space where issues relating to family dynamics can be addressed. f) The father is seeking family reconciliation therapy to open the conversation and try to rebuild his relationship with E. g) The mother is seeking outcomes – for example the father’s accountability, his acknowledgment and receptivity to hearing about E.’s feelings – which can be focussed on in family therapy. h) E. is seeking outcomes with respect to their father – for example, his father’s acknowledgment of mistakes, recognition of harms, openness to change and taking responsibility for negative actions – which can be focussed on in family therapy.

Conclusion

[42] The order is to go as follows:

[43] 1. D.L. and J.Q. and the child E. shall attend and participate in family reconciliation therapy with a family therapist as follows:

a) Within seven days or earlier, D.L’s lawyer shall provide J.Q.’s lawyer with two names of family therapists (including their resumes, locations and hourly rates) who can provide reconciliation therapy in a timely manner. b) Within seven days of the provision of these names, J.Q. shall advise D.L.’s lawyer via email which therapist she would prefer to retain. Failing a response, the choice shall be D.L.’s and his lawyer shall promptly advise J.Q. of his choice via email. c) Within seven days of the choice of therapist, the parties shall contact them 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. d) Within fourteen days of the therapist being determined, the parties shall pay the retainer to the therapist. e) The cost of the retainer and ongoing therapy is to be shared 50/50. f) Once the therapist has been identified, the parties shall forthwith schedule their intake or subsequent appointments as directed by the therapist. g) The parents shall cooperate with the therapist. h) 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 E. is transported to/from appointments in a timely manner, to exercising parental authority to require E. to attend and cooperate with the therapy sessions and interventions. i) The therapist may make recommendations to the parents, counsel and the court. j) The therapist may make recommendations for additional therapists, the removal of a current therapist or the cessation of E.’s individual therapy if these are deemed to be unhelpful to the family therapy. k) The parties shall execute authorizations as requested by the therapist to enable the therapist to receive or provide information about E. in relation to the therapeutic counselling. l) If either parent fails to comply with the obligations contained in the reconciliation 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 E. to appointments as required by the therapist, or fails to comply with the terms of this order in relation to therapy, the therapist shall write a brief report jointly addressed to both parties. Upon receipt of such a report, either party may bring a 14B motion to request a court appearance. m) The reconciliation therapy shall continue for as long as the therapist directs or until a court order is made terminating the therapy. n) If the therapist directs that further reconciliation therapy should not continue, the therapist shall write a brief report jointly addressed to both parties setting out the reasons for the termination, the progress made and any recommendations for further clinical intervention. Upon receipt of such a report, either party may bring a 14B motion to request a court appearance. o) Fourteen days before the return date, the therapist shall write a brief report jointly addressed to both parties 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 as an attachment to their briefs. p) The goals of the therapy shall include, but shall not be limited to the following: i) Restoring contact and communication between E. and his father. ii) Restoring, developing or facilitating adequate parenting and co-parenting functioning and skills. iii) Developing family communication skills.

[44] If D.L. seeks costs, written costs submissions (maximum 3 pages) and a Bill of Costs to be served and filed by December 10, 2024. Any responding submissions (maximum 3 pages) and a Bill of Costs to be served and filed by December 19, 2024.

[45] The matter is scheduled to return on January 7, 2025 at 9:00 am via Zoom. This date may be vacated if it is not required and a later date set to allow for the therapeutic process to unfold.

Released on November 29, 2024

Justice D. Szandtner