CITATION: Testani v. Haughton, 2016 ONSC 5827

NEWMARKET COURT FILE NO.: FC-15-49755-00

DATE: 20160919

CORRIGENDA: 20160926

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Antonella Testani

Applicant

• and -

Jason Haughton

Respondent

Counsel for the Applicant: S. Herschorn

Counsel for the Respondent: M. Kazman

HEARD: August 24, 2016

JARVIS J.:

ruling on motion

(TEXT OF ORIGINAL DECISION HAD BEEN AMENDED – CHANGES APPENDED)

Introduction

[1] The respondent (“the husband”) has brought a motion seeking a broad range of relief, which the applicant (“the wife”) opposes. The issues involve reunification counselling for their daughter, support, interim disbursements and an equalization payment advance to the husband.

[2] The facts relevant to the issues are these:

(a) the parties married on May 3, 2003 and separated on October 11, 2015;

(b) there are two children of the marriage, only one of which (“M.”) is entitled to child support;

(c) M. is almost 13 years old and resides with her mother in the matrimonial home;

(d) there has been no access between the child and the father since October 23, 2015;

(e) on February 1, 2016 Bennett J. requested the involvement of the Office of the Children’s Lawyer (“the OCL”). An investigation was started but later discontinued because the child refused to have any access with her father;

(f) the parties have modest means. Their principal asset is the jointly owned matrimonial home which was appraised in October 2015 as being worth $580,000. It is subject to a mortgage of $230,000 (approx). This residence was transferred to the parties by the wife’s mother several years before the parties separated. There is a dispute whether the parties owe the wife’s mother $125,000 relating to that transfer;

(g) the husband is illiterate and worked as a labourer until he was injured in an industrial accident in December 2014. After his WSIB benefits terminated, he began to receive long-term disability benefits of $1,924 a month, or $23,088 a year. These benefits will cease in April 2017. In addition, the parties’ line of credit and mortgage are being paid through insurance. These payments will cease in February 2017;

(h) the wife works for a property management company and earns about $52,000 a year; and

(i) nothing has been paid on account of child or spousal support.

Reunification Counselling

[3] The husband claims that the wife has engaged in conduct that is alienating the child from him. On February 1, 2016 Bennett J. ordered the involvement of the Office of the Children’s Lawyer (“OCL”). Before that Order was made, the child had been referred by the Victim Quick Response Program of the Ministry of the Attorney General for counselling due to allegations of domestic violence in the family. These sessions commenced on November 28, 2015. There were 10 sessions held. In a March 9, 2016 report to the wife’s lawyer, the therapist made the following observations and recommendations,

M.’s current feelings of pain, anger and devastation over her parents’ separation are quite legitimate. She loves he father and is anticipating access with him in the future. It is recommended that:

1. No forced or premature access takes place between M. and her father.

2. M. receives additional individual counseling to prepare her for exercising access with her father.

3. Based on the nature of the allegations made by M. against her father, that M. and her father receive joint counseling to facilitate their re-integration.

4. Access begins as supervised at a supervised access facility or in the presence of a designated individual.

5. Independent counsel be sought for M.

[4] The OCL discontinued its investigation on or about May 20, 2016. The OCL clinician summarized the situation as follows,

M. has refused to have any access with her father, at this time. Given the anger that she is currently experiencing, any attempt to force access with Mr. Haughton would create further anger and damage any potential relationship in the future. M. benefited from counseling over a period of months, and was able to articulate this anger to her father. Unfortunately given the discord between parents, Mr. Haughton has expressed undue influence by Ms. Testani. It is conceivable that M. has been exposed to adult information, directly and indirectly, as her family experiences the shame and loss of Mr. Haughton departure from the family. M. has therefore chosen her "family" to be those people who were left behind.

As M. has some distance from her father, it is hopeful that she is able to evaluate her feelings as separate from her family. Ideally this can be done with the support of professionals when she is ready to consider options in re-establishing a relationship with her father. Should this occur, it would ideally include Mr. Haughton, when a therapist believes that she is ready to pose the questions that she has for him, and she is in a place where she is able to hear his answers in a manner that allows her to experience closure.

[5] The husband maintains that reunification counselling for the child should be commenced immediately, and he has proposed a therapist (the terms “reunification” and “reintegration” are used interchangeably-for clarity, the term “reunification” is used in this Ruling). A description of the therapist’s services and her Curriculum Vitae accompanied the husband’s evidence. In addition the therapist briefly described in an email to the husband’s lawyer her initial approach and retainer requirements.

As per your request, this email is to provide information about the process of reintegration therapy. Before proceeding with this therapy, I typically have a brief call with both counsel, an individual intake meeting with both parties and a meeting with the child(ren). Once I have had an opportunity to meet all family members, I hold a brief call with counsel to provide information about next steps (i.e. whether or not the family is suitable for reintegration therapy and service agreement).

[6] The therapist advised that her hourly rate was $250 and that a six hour retainer was required upon commencement to cover the costs of the intake interviews/meetings. The parents would also need to complete an intake form beforehand.

[7] The wife has denied engaging in any alienating behaviour. She maintains that she has always believed, even advocated, that the child should have a relationship with her father but that it would be unfair to force the child to see her father until more time has passed. How long that would be and at what point more affirmative steps would be taken were not stated. There have, apparently, been two further sessions with the therapist earlier seen by the child but there was no evidence of any change in that therapist’s observations (as noted above in paragraph [3]) or the child’s views about seeing her father. The wife submits that it is the husband who should first seek therapy “to set an example” for the child.

[8] The mother challenged the court's jurisdiction to order counselling. She argued that even if that jurisdiction obtained, the evidence was insufficient to make the Order sought, and to apportion the cost of therapy.

[9] The issue whether this court has the jurisdiction to order counselling is not clear cut. Nowhere in the Children's Law Reform Act (the “CLRA”) can specific authority to order counselling be found, except possibly by inference from sections 28 (1) (b) and (c) (vii) and 34 as an incident of custody or access. Those provide as follows,

28. (1) The court to which an application is made under section 21,

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

34. (1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body. R.S.O. 1990, c. C.12, s. 34 (1).

[10] In Kramer v. Kramer, 2003 64318 (ON SC), [2003] O.J. No. 1418, 37 RFL (5th) 381, 121 ACWS (3rd) 1092 (Ont S.C.J.) the court relied on its inherent parens patriae jurisdiction as a Superior Court of record to order family counselling, noting that the power to make such an order should be exercised sparingly, and was likely useless if forced on an unwilling participant. There was no discussion about any statutory basis for making that kind of Order.

[11] Shortly afterwards, the absence of a clear statutory basis for the jurisdiction to order counselling was noted in Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 1625, 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373 [2005] O.J. No. 275, 2005 CarswellOnt 266,

[14] It may certainly be desirable for parents to take counseling on how to better parent their child and to hire a counselor or parenting coach to resolve disputes. The order provided by the trial judge was, however, problematic. The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents. There was no evidence that the parties would be able to agree on whom to appoint. There was no agreed process for the appointment of a counselor in the event that they could not agree who should be their counselor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counselor outside the court process envisaged under the Divorce Act and without recourse to it.

[12] In SBS v. SL [2009] O.J. No. 5032, 2009 Carswell Ont 7285, 182 ACWS (3rd) 380 (Ont. S.C.J.) Boswell J. accepted that the court had the power to order reunification therapy but declined to make that Order pending the completion of an assessment pursuant to section 30 of the Children's Law Reform Act which was already underway. The views and findings of the assessor could be helpful before making any Order for counselling.

[13] In Scott v. Lloyd, 2014 ONCJ 639, O’Connell J. relied on sections 28 and 34 of the CLRA to order supervised access in the presence of a reunification therapist. The Ontario Court of Justice does not have a parens patriae jurisdiction. Care must be taken though in conflating supervision and counselling.

[14] In Collins v. Collins, 2015 ONSC 3558 James J. appears to have assumed that the court had jurisdiction to order reunification therapy, although in that case the parties had agreed that therapeutic assistance was warranted. No order was made because the proponent of the therapy had not sufficiently detailed it before the motion was heard, and so that issue was dismissed on a without prejudice basis. Directions were given as to what information would be needed before the court would consider making any such order for reunification therapy.

[15] In Fiorito v. Wiggins, 2015 ONCA 729, the Court of Appeal cautioned about unnecessary resort to this court’s parens patriae jurisdiction where a statutory basis for that jurisdiction could be found, in that case section 24 (2) of the CLRA dealing with the children’s “means and circumstances.” The court was alert to the challenges of ordering counselling in circumstances where there was high parental conflict. Also noted was a distinction to be drawn between the purpose of therapy, and its stated goals, and supervised access. In the case before me, the mother’s evidence is that she agrees with a rehabilitation of child’s relationship with her father.

[16] While this court has some doubts about the sincerity of the wife’s commitment to the rehabilitation of the daughter/father relationship, as evidenced by the wife’s suggestion that it is her husband who should first seek out therapy, her representations to the court are clear. She shall be expected to help facilitate any such process. In Reeves v. Reeves, [2001] O.J. No. 308, Mossip J. observed,

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place. [Emphasis added]

[17] There is no need, in my view, to rely upon this court’s inherent parens patriae jurisdiction to craft an Order which will help promote a rehabilitated relationship between children and their parents. The jurisdiction to order therapeutic counselling can be found in sections 24 (2) and 28 (1) (b) and (c) (vii) of the CLRA but caution must be exercised when considering the circumstances in which any such Order would be appropriate and, if so, to define the parameters of such third party involvement.

[18] In summary then,

1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children's Law Reform Act.

2. Such orders are to be made sparingly.

3. There must be compelling evidence that the therapy will be beneficial.

4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.

5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

[19] Too long a period of time has passed without some kind of process being implemented to deal with this child's fractured relationship with her father. The proposed therapist’s approach to ascertain whether or not the family is suitable for reunification therapy is sensible. In addition to completion of the intake forms required by the therapist, there shall be forwarded to her before any meeting with the parents or child the child's letter written to her father dated February 27, 2016, the March 9, 2016 report of the therapist seen by the child and to which reference was made in paragraph [3] of this Ruling, and the OCL discontinued report. Each parent shall also sign such authorizations as may be required by the therapist to obtain such additional information as she may feel required in order to ascertain whether reunification counselling is indicated and, if so, what that should comprise. It is likely that the therapist's cost may exceed the initial retainer estimated and so, as will be detailed below, that will be modestly enhanced.

Support

[20] The husband claims that he is entitled to spousal support. Acknowledging that he has a child support obligation, he proposes that the wife pay him a set-off amount of $324 monthly spousal support. It is not entirely clear how that amount was calculated but there is no reason why since the issue of support is engaged, that child and spousal support cannot be ordered.

[21] Based on an income of $23,088 a year, the Child Support Guidelines mandate that child support in the amount of $185 a month be paid.

[22] The husband is clearly entitled to spousal support. It is not necessary at this juncture to more comprehensively analyze the husband’s entitlement. In Knowles v. Lindstrom, 2015 ONSC 1408, 57 R.F.L. (7th) 402, Penny J. observed at para 8, (as most recently followed by MacKinnon J. in Bridge v. Laurence, 2016 ONSC 5075),

[18] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

[23] Given the length of the parties’ marriage, the fact that over $2,600 of monthly expenses for the matrimonial home are being funded by the husband’s insurance benefits, and his need, a monthly spousal support award in the amount of $500 is not unreasonable.

Interim Disbursements

[24] The husband presented no evidence identifying the expenses for which interim disbursements were being sought although he noted that he was indebted to his solicitors and had credit card debt. Even if that evidence had been provided, the fact is that the wife simply does not have the funds to advance anything to the husband. Her evidence does disclose about $7,000 in two accounts, one joint, the other in her name alone, which she indicated she was prepared to share with the husband on a without prejudice basis. He had earlier declined to accept any of these funds. There is no reason why those funds should not be used to fund the therapist’s retainer, and the balance then equally distributed to each of the parties on a without prejudice basis. Any adjustment relating to the therapist’s costs and financial events post-dating the valuation date can be taken into account by the trial judge after the equalization payment is determined.

Equalization Payment Advance

[25] There is no statutory basis on which a court may order one party to pay the other a sum as an advance on his or her claim for an equalization payment: Stork v. Stork, 2015 ONSC 312. In Zagdanski v. Zagdanski, (2001), 55 O.R. (3d) at p. 6 (Ont. S.C.) a partial equalization payment was advanced. Despite doubt being expressed about the correctness of that decision, McGee J. in Stork identified at least seven times in Ontario that Zagdanski had been followed and noted that it had been cited with approval a further 11 times. The Zagdanski factors are:

1. There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount.

2. There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment.

3. There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action.

4. There may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.

[26] None of these factors applies in this case. There is no certainty about the minimum amount of any equalization payment. Notably, the parties’ principal asset is their jointly-owned matrimonial home. It is likely that, unless the parties can otherwise agree, it will be sold and any equalization payment due by one party to the other funded from the distributable net proceeds of sale. In any event, the wife does not have the means to advance funds to the husband.

Disposition

[27] The following is ordered:

1. The parties shall forthwith engage the services of Shely Polak to proceed with reunification therapy. A telephone call with counsel and her shall be held before September 30, 2016. Each party shall, within 14 days after that call, complete and remit to Ms. Polak the signed intake form and service agreement required by her. The husband shall provide to Ms. Polak within that timeframe the documents referenced in paragraph [19] of this Ruling. Each party shall also complete and remit to Ms. Polak, within 10 days of her request, any authorization which she determines is reasonably needed to proceed with her engagement.

2. The mother shall be responsible for ensuring that the child attend the therapist as required.

3. Ms. Polak shall summarize for the court the issues addressed in therapy. That report shall be submitted after three sessions, or earlier if Ms. Polak should determine that the family is not suitable for reunification therapy. The report shall be filed by the husband in the Continuing Record within 14 days of its date, attached to an affidavit, and directed to my attention. No other material is to be included in, or accompany, the affidavit.

4. There shall be paid from the funds held by the wife in her Scotia Bank chequing account ending in #328 and by the parties jointly in their Scotia Bank joint chequing account ending in #389 the sum of $2,000 to Ms. Polak as and for her retainer. This shall be effected within 14 days of the teleconference between her and counsel. Any part of her retainer not used by Ms. Polak shall be refunded to the parties in equal shares.

5. In the event of any dispute about any of the directions set out in #1 to #4 above, either party may move by 14B motion directed to me on 10 days’ notice to the other party.

6. The husband shall pay to the wife child support in the amount of $185 a month starting October 1, 2016, and continuing thereafter until further Order.

7. The wife shall pay to the husband spousal support in the amount of $500 starting October 1, 2016 and continuing on the first day of each and every succeeding month until further Order.

8. no Order is made as to section 7 expenses for the child.

9. The amounts awarded for child and spousal support are without prejudice to any claims that either party may wish to advance retroactive to the valuation date or as may be varied at trial.

10. After payment to the therapist as set out in #4 above, the wife shall forthwith divide equally the balance of the funds remaining in those accounts and remit one-half of the funds to the husband. This remittance is ordered without prejudice to either party’s claims in these proceedings.

11. The husband’s request for interim disbursements is dismissed.

12. The husband’s request for an equalization payment advance is dismissed.

[28] A Support Deduction Order shall issue.

Costs

[29] Success was divided. If, however, either party or both parties are claiming costs and are unable to resolve that issue, then each shall by no later than October 14, 2016 file in the Continuing Record their written submissions limited to three double-spaced pages. Offers to Settle (if any), Bills of Costs and any Authorities upon which a party may be relying shall be filed by that date too but not form part of the Record.

Justice D.A. Jarvis

Date: September 19, 2016

AMENDMENTS

1. The “heard” date on the first page has been amended to read: August 24, 2016 (not August 25, 2016).

2. Paragraph [2] (c) has been amended to reflect that M. is almost 13 years old (not 16).

3. Paragraph [24] has been amended with highlighting and question mark removed.