CITATION: E.T. v. L.D., 2017 ONSC 4870

COURT FILE NO.: FS-15-400682

DATE: 20170814

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: E.T., Applicant

AND: L.D., Respondent

BEFORE: Mr. Justice M. D. Faieta

COUNSEL: Martha McCarthy and Deborah Perkins-Leitman, for the Applicant

L.D., on his own behalf

E N D O R S E M E N T

INTRODUCTION

[1] On June 28, 2017, the Applicant (“Mom”) brought this motion for an Order requiring her family to attend the Families Moving Forward Program (“Families Program”) with Dr. Barbara Fidler on or before August 15, 2017 in order to determine whether the family suitable for the program and, if so, to then participate in the appropriate treatment strategy. The purpose of this program is to prevent strained family relationships, particularly where children resist having contract with a parent, from becoming more strained and difficult to repair: see https://www.familiesmovingforward.ca

[2] The motion was adjourned to afford the Respondent (“Dad”) time to prepare for this motion and appear with or without counsel. Dad opposes the motion. He submits that this form of counselling is unnecessary. He denies that any of the children are alienated from Mom.

[3] However, Dad states:

The children have been upset with [Mom] since the beginning of the divorce proceedings over her continued use of them as pawns and tools in her our divorce to try to get more financially for herself even if the children suffer. [para. 9]

The first time she did this was regarding finalizing the custody of the children. … The children confronted her … many times and said they would not accept her trying to prevent them from being with me equally but she did not care. … [paras. 10 and 11]

My father stopped providing money for the children at this time as a result of [Mom] not leaving them out of her financial issues. I had depleted most of my cash … . The children however began to suffer. They did not participate in any activity that had not already been paid for. [para. 35]

Throughout the winter the children obviously were upset [Mom] and further compounded by her attempts to deny what she did. On the one hand she tells them she would never do anything to affect their lives when on the other hand they know she has done the very opposite. This obviously created friction. [page. 49]

The children know that [the private school] is over for them. They know that [Mom] has done something to cause this and their grandfather to stop trying to help them. [Mom] has tried almost every lie to avoid telling them the truth and the children just won’t accept her lies. … This is serious. My children realize how [Mom] has used them and continues to use them. [paras. 63 and 64] [Affidavit, July 31, 2017]

[4] Given Dad’s position, I have outlined in considerable detail the evidence before this court which shows that Dad has made his fight against Mom their fight. This has led to, amongst other things, the refusal of two of the three children to reside with Mom at various times unless Mom does as Dad asks in this litigation. The parenting plan is not being respected in letter or spirit. As a consequence, the children, who love both parents, are needlessly suffering. It is in the best interests of the children to grant the Order that sought by Mom.

BACKGROUND

[5] Mom and Dad were married in May, 1992 and separated in May, 2014. They have three boys – ages 16 (the “Oldest Son”), 12 (the “Middle Son”), and 9 (the “Youngest Son”). Materially, the boys have wanted for nothing. They have attended private schools, summer camps and participated in high level sports.

[6] On February 11, 2015, this Application was commenced. Amongst other things, Mom sought a divorce, support for herself and the children, and equalization of net family property. From the outset the children were drawn into this proceeding. Mom states that Dad read her Application aloud to all three children on the day that he was served with it. This has not been denied by Dad.

[7] The matrimonial home was sold in May, 2015. Subsequently, each of the parties have rented a house and live near one another.

[8] On August 17, 2015, the parties entered into a Partial Separation Agreement that settled all parenting, property and equalization issues other than child support, spousal support and equalization of a townhouse. The Agreement provides that the parties will have joint custody of the children and will honour their parenting plan.

Parenting Plan

[9] Mom and Dad’s parenting plan was prepared with the assistance of Dr. Howard Irving in May and June, 2015. It is comprehensive in its scope and detail. It provides that the children will reside with their parents in accordance with an equal time-sharing schedule. Of particular relevance for purposes of this motion their parenting plan states:

Children of divorce do best in the short and long run when they feel loved and cared for by both parents. This is most likely to occur when the [children] having ongoing contact with both parents who participate fully in their lives. Children feel more secure and better about themselves knowing both parents want them and want to be involved in their lives, and it helps diminish feelings of abandonment and rejection. Children also need constancy and stability. The [children]’s need for frequent contact and for stability must be adjusted to arrive at a healthy balance. This balance will depend on many factors, including those related to the [children] (e.g., their ages, developmental needs, and temperaments), Mom and Dad and the circumstances.

Most children in divorced families struggle to some extent with a loyalty bind, that is, they feel torn when their commitment to one parent may be seen as disloyalty to the other parent. …

The [children’s] overall adjustment and their relationship with both parents will be compromised if they are exposed to disapproving attitudes or negative comments about the other parent; and/or if one parent undermines the other (even when he/she thinks the other parent deserves it). …

The [children] have been exposed to such denigration when one parent blames the other for the divorce, or undermines the other with derogatory comments, or is critical of the other’s lifestyle or personality. When this occurs the [children] will have difficulty showing that he is happy spending time with the other parent, as this would only let their present parent down. …

The negative effect on inter-parental conflict on child adjustment has been well documented. “Every missile we send to our ex-spouse goes through the heart of our children”. In addition to providing a poor and negative model, observing parents verbally mistreat one another communicates to the [children] that their parents do not mutually respect or like each other. In turn, this message exacerbates the [children’s] loyalty bind and negatively affects all aspects of their adjustment. Healthy child adjustment requires parental co-operation, mutual respect and the absence of inter-parental conflict. …

It will damage the [children’s] current and future adjustment if they are relied upon to carry messages … between Mom and Dad. It is imperative that Mom and Dad not rely on the [children] for communication. If the [children] ask either parent for a change in the sharing schedule, the parent is advised to say that Mom and Dad will discuss the matter, decide if they can accommodate the request, and get back to [them]. [Emphasis added.]

Mom and Dad are committed to the spirit of the parenting plan, which recognizes the [children’s] need for a good and ongoing relationship with both parents and which calls for shared responsibility, with both parents involved in all matters related to [them]. [Emphasis added]

[10] Mom states:

All three children share a close bond with me. As a stay-at-home parent, during the marriage I was the parent who took the children to school almost every day and picked them up when they were finished. I bought the children’s clothing, fed them, assisted them with homework, and put them to bed at night. I took them to their many activities. I administered four daily insulin injections to [Middle Son], who has Type 1 Diabetes. I attended all of his class trips and made sure that he check his blood glucose levels and ate his meals and snacks in a timely manner.

The children and I do not have a history of significant conflict or acrimony. The children only began to behave differently towards me as [Dad’s] efforts to vilify me, manipulate them and involve them in our conflict intensified. [Affidavit, July 13, 2017]

Motion for Payment of Tuition, etc.

[11] Mom brought an urgent motion for, amongst other things, payment of the tuition of the children’s private school as two of the children had not been permitted to return by the school until arrears of more than $100,000.00 were paid. On January 12, 2017, Mom and Dad agreed to an Order that required them to pay about $53,000 each to the school subject to adjustment later by this Court. The parties also agreed to list their townhouse for sale and to attend a one-day mediation with Philip Epstein, Q.C.

Motion for Interim Support

[12] In an email dated September 16, 2016, Dad told Mom and Dr. Irving:

[Mom] has raised as an issue in her support proceedings that the kids daily lives such as go to [private school], playing on sports teams and the like means somehow that I should pay her more money. … The effect of this is that I am not going to continue on the one hand try the best I can to make so sure our children have for example the benefits of attending [private school] as opposed to public school used as leverage against me to somehow get more money from me. If the kids lives are not off limits in whatever else is going on between me and [Mom] we must then discuss how to deal with that. …

This cannot go on. If we are pulling the kids out of [private school] we need to do it now at the beginning of the school year. The same applies for [Middle Son] and his hockey as his hockey fees have not been paid and I won’t pay them under these circumstances when [Mom] will use it against me; we can just tell [Middle Son] he cannot play.

To be clear I will not lie to my kids. Each of our actions has implications. … [Emphasis added]

[13] Mom’s motion for interim child and spousal support was heard on November 22, 2016.

[14] Dad stated that his income should be imputed to be $275,000.00 per year even though he stated that his annual income at that time was $0 and that he had not earned $275,000.00 per year for the last 15 years. Dad stated that he had paid Mom about $7,000 per month for both child support and spousal from April 2016 and that he should be ordered to continue to do so on an interim basis.

[15] Mom’s evidence is that over the years Dad has drawn money from a corporation in which he, his father, mother and sister are shareholders to pay for family expenses and living costs which permitted them to maintain a lavish lifestyle despite Dad’s variable income.

[16] The Court, by decision dated January 13, 2017, found that Dad’s budget showed expenses of $683,417.88 per year which, when grossed up to account for taxes, would result in an income for support purposes of $1,337,530.00. Ultimately, the court concluded that it was appropriate to impute an income of $1,200,000 to Dad considering the family’s lifestyle during their marriage. Dad took the position that his reported income in 2015 of $656,844.65 reflected a large one-time capital gain however he did not provide the court with his completed tax returns for the three prior years to support his position that his income for 2015 was unusually high. The Court ordered that Dad pay $17,731.00 per month in child support commencing September 1, 2016 and $9,376.00 in spousal support to Mom.

[17] Significantly, the Court also ordered that:

Neither party is to discuss the litigation with the children or involve them in any way, or denigrate or disparage the other parent in front of or to the children or third parties, or permit others to do so.

[18] The above order was made as the Court found at paragraphs 82, 84-86:

[82] There are two sorts of conduct in issue as far as [Mom] is concerned. First, she argues that [Dad] is trying to bully or intimidate her into withdrawing from the litigation, both by involving the children and threatening that, for example, her claims will mean that the children are no longer able to attend [private school] and/or that they will no longer be able to participate in their extracurricular activities (such as camp, hockey or skiing). …

[84] Having said that, I am concerned about the evidence of some of [Dad’s] conduct. For example, he apparently sat down with the three boys and read them the entire application. [Mom] also gives other examples of things he has apparently said to the children which are inappropriate. In particular, she states that he has told the boys that they may no longer be able to participate in their activities because of the litigation she is pursuing, and has generally involved them in these adult matters. This is not contested.

[85] Denigrating the other parent and/or involving the children in the litigation exposes them to conflict and is well recognized as potentially damaging to children. At the very least, it is conduct that is not in their best interests. It can result in reassessment of custody determinations on the basis that our law recognizes that children generally benefit from strong relationships with both parents and that the conduct by one parent undermining the relationship of the children and the other parent may reflect an inability to put the children’s interests before their own.

[86] Both parents are clearly loving and engaged parents who have, until recently, co-parented these children effectively and the children have thrived. The emails in the record make it clear that [Dad] is furious at [Mom] for bringing this motion for support and taking the positions she has in this litigation. Whether or not his anger is justified, or he is correct on the merits of this litigation, his conduct involving the children is not. In fact, it is shocking, and likely to be damaging to the children. It is well recognized that regular exposure to parental conflict is damaging to children. They have in the past worked with Dr. Irving on parenting issues and I would highly recommend that they consult him and heed his advice as to managing their conflicts so as to minimize the effect on their children. [Emphasis added.]

Events Following the Release of the Support Order Decision

[19] On the day that Justice Harvison-Young’s decision was released Dad called Mom while on a ski trip with the children and said “It’s all over”. He told her that he was going to pull the children off the ski hills and drive back to Toronto with the children. He said that he was going to make sure that the children knew that the decision was Mom’s “fault”. Dad shared the decision with the Oldest son and told Mom that the other two younger sons would likely read it in the near future.

[20] The children began resisting access with Mom. Mom states that this was done with the intention to reduce Dad’s child support obligations. The Oldest Son began resisting access with Mom on Tuesday nights. Dad told Brandon that if he does stay with him for an additional night he will not be able to continue ski competitively and attend private school. In January and February 2017, the Oldest Son sent the following text messages to Mom: “I need to be able to ski and everything and it seems like the only way for this to get done”; “I need to sleep at dads please”, “Mom I can’t I am sorry I am in a tough situation I have to”; “I need to be able to ski and everything and it seems like the only way for this to get done.”; “I am staying with dad until u stop”

[21] Justice Harvison-Young’s decision was reported by a newspaper. Dad informed the Oldest Son about the newspaper article and suggested that Dad looked bad in the article because Mom had colluded with the newspaper to do so.

[22] Dad, in his affidavit sworn July 31, 2017 states that:

The children have been upset with [Mom] since the beginning of the divorce proceedings over her continued use of them as pawns and tools in her our divorce to try to get more financially for herself even if the children suffer. [para. 9]

The first she did this was regarding finalizing the custody of the children. … The children confronted her … many times and said they would not accept her trying to prevent them from being with me equally but she did not care. … [paras. 10 and 11]

My father stopped providing money for the children at this time as a result of [Mom] not leaving them out of her financial issues. I had depleted most of my cash … . The children however began to suffer. They did not participate in any activity that had not already been paid for. [para. 35]

Throughout the winter the children obviously were upset [Mom] and further compounded by her attempts to deny what she did. On the one hand she tells them she would never do anything to affect their lives when on the other hand they know she has done the very opposite. This obviously created friction. [page. 49]

The children know that [the private school] is over for them. They know that [Mom] has done something to cause this and their grandfather to stop trying to help them. [Mom] has tried almost every lie to avoid telling them the truth and the children just won’t accept her lies. … This is serious. My children realize how [Mom] has used them and continues to use them. [paras. 63 and 64]

Dr. Irving’s Withdrawal

[23] Dr. Irving sent the following letter, dated February 1, 2017, to Mom and Dad’s lawyers:

As you know, I have been involved with the above-mentioned family since May 2015 as an agreed upon family mediator. The parties signed a closed-mediation agreement on June 3, 2015. The initial request was to help them arrive at a parenting plan, which was signed by both parties.

Recently, Madame Justice Harvison Young gave her decision with a comprehensive overview. Following that decision, there were some significant changes regarding financial matters that impacted both parents and children. The children became quite anxious and stressed regarding their future education plans, where they would be living, and their extracurricular activities. This has resulted in a situation where the children are caught in the middle. For example, [Oldest Son] is now spending more access time with his father which is not what was agreed upon in the parenting plan. In essence, there are so many changes taking place and also there is a breakdown in communication. This has resulted in a high conflict situation where both parents and the children need help.

I believe that Justice Harvison Young has made mention of this situation regarding the children in her report. In my opinion, this high conflict situation is no longer mediatable. Therefore, I would strongly recommend that a Parenting Coordinator be appointed as soon as possible who has arbitrational authority that can oversee the parenting plan agreement. I would also recommend that both parents and the children be referred to a Family Therapist for counselling. [Emphasis added]

Failed Mediation

[24] Pursuant to the order issued January 12, 2017 on consent, Mom and Dad attended mediation sessions with Philip Epstein, Q.C., on March 8, 2017 and April 12, 2017. On April 25, 2017, Mr. Epstein sent the following email message to Mom, Dad and their lawyers:

I very much regret that I am unable to help these two parties. I find the situation appalling and allowing the children to be used as pawns is not something I want to work with. Good luck to you all. I am closing my file.

[25] On April 26, 2017 Mr. Epstein sent the following letter to Mom and Dad:

I very much regret that I was unable to assist you in bringing this matter to a conclusion. Not every high conflict case can be successfully managed through a parenting coordinator and a mediator and it was my considered view that your case is an exception.

It is clear to me from the meetings and the emails that the children are being used as pawns in the struggle. This kind of behaviour is extremely damaging for the children and indicates to me that the parties have become so adversarial that the children’s needs have been completely obscured and lost. While their physical needs may be met, their emotional needs are in great jeopardy.

I tried to make it clear to [Dad], in particular, that I thought that using [private school] as an attempted lever was misdirected and contrary to the children’s best interests. Clearly, I could not persuade him to abandon that course of action, although I certainly hope that by the time this letter is received, the parties will have resolved the [private school] issue and re-enrolled the children.

It is entirely clear to me that even if I were to assume the mantle of parenting coordinator, my advice and directions would be ignored. I do not think the mediation or arbitration process is suitable for the two of you give your level of hostility and conflict.

I deeply regret what this must be doing to your children and I hope that my resignation is a wake up call for considerably better behaviour and a quickly negotiated settlement.

[26] Mr. Epstein’s “wake up call” fell on deaf ears.

Family Responsibility Office

[27] Dad has not complied with the support order made by Justice Harvison-Young nor has he obtained a stay of that order. He holds his former lawyer responsible for his failure to obtain a stay of the Order. Dad states that he does not have the means to comply with the support order.

[28] Dad received a letter dated May 18, 2017 from the Family Responsibility Office which stated that he was to contact the FRO to avoid enforcement action which could include the suspension of his drivers’ licence. Dad told his Oldest Son about this letter and the risk that he could lose his drivers’ licence if he failed to comply with this court’s order.

[29] On June 19, 2017, Mom went to Dad’s house to pick up her boys and left only with her youngest son. Mom states that she had the following exchange with Dad in the presence of her two oldest sons:

Dad: You need to withdraw from FRO. You need to stop now.

Mom: I filed nothing with the FRO. Stop discussing it in front of the children.

Oldest Son: I cannot come with you unless you withdraw the license thing as Dad cannot drive.

Dad: [Middle son] is 12 and [Oldest Son] is 16 and they can do whatever they want and they are not coming with you.

[30] On June 21, 2017 the Oldest Son told his Mom that Dad could not pay his rent because of her and that she was responsible for Dad losing his license. He also stated that he needed to “protect his life with his one parent” and that he would not go to her home anymore unless she “dropped everything”.

[31] On June 23, 2017 Mom went to pick up the children from Dad’s house. Dad and the two oldest children were at the front door. The following exchange occurred:

Oldest Son: Are you going to withdraw the thing? You need to withdraw the thing or else I cannot come with you

Dad: She’s going to use that in court.

[32] Eventually only the Youngest Son came out to Mom’s car and left with her. Before leaving, the Youngest Son told her: [Oldest Son] told me to tell you to stop the license thing.” The Oldest Son came to Mom’s car and told her “I don’t know what to do” as he knew that Dad’s drivers’ licence had not been taken away.

[33] On June 25, 2017 the Oldest Son sent Mom the following text message:

U just have to withdraw the family office license thing. And then we r good.

Motion to Prevent Disclosure of Motion Materials

[34] On June 29, 2017, Justice Ferguson issued an order, without notice to Dad, that states:

[Dad] shall not communicate with the children about [Mom’s] Notice of Motion returnable June 29, 2017 and July 18, 2017 and about the materials filed in the Court in support of the Motions.

[Dad] shall not share the motion materials with the children in any way. …

Motion to Deliver Children

[35] On July 18, 2017, I ordered, amongst other things, that Dad was to deliver the children to Mom’s home by 5 pm that day and that Mom could travel on vacation with the children from July 18, 2017 so long as the children were returned to Toronto by July 26, 2017. As of July 18, 2017 Mom had not seen the Middle Son for six weeks.

[36] Mom states that the following events occurred after this Order was made:

• About one hour later, the Middle Son called Mom and said “Try me bitch” and then hung up;

• At about 1:56 pm, Mom sent a text message to the children and said “Hi guys. I’ll see you at 5. Bring with you a bathing suit, flip flops or slides googles and anything else you want. [Oldest son] please bring your medicine. Mom. The Middle Son replied “Suck my dick”. In reply Mom later sent another text message: “… I would like to see you. Can we meet today please. I really need to talk with you. It’s very important. Love, Mom”. The Middle Son replied: “Honestly mom. Go fuck urself.”

• At about 5 pm Dad arrived at Mom’s home with the children except the Middle Son who refused to go to his Mom’s home.

• Further, Oldest Son told Mom that he was travelling to a friend’s cottage on July 22, 2017 and that Dad had bought him a bus ticket to get there. Mom offered to drive him to the cottage. The Oldest Son called his Dad and reported to his Mom that Dad wanted to drive him to the cottage. The Oldest Son became upset and Mom agreed to have Dad drive him. However, the Oldest Son then agreed to have Mom drive him so long as Dad was reimbursed for the bus ticket that he had purchased.

• Mom returned the two children to Dad’s care on July 24. That evening the Oldest Son asked Mom not to include the children’s expenses in Dad’s income. He stated that she and Dad had an agreement not to include these expenses and he handed her a copy of pages 5 and 6 of her affidavit sworn July 13, 2017 with paragraphs 33 and 39 highlighted.

• On July 24, 2017, the Middle Son contacted his mom for the first time that week to say that he wanted her to pick him up from his baseball game that evening. The game was cancelled. He chose to sleep at a friend’s house rather than at his Mom’s home. On the next day the Middle Son decided to stay at Mom’s home for the evening. When asked why he decided to stay over that night, he yelled at his mom to leave him alone.

Failed Settlement Meeting – July 27, 2017

[37] Mom and Dad met on July 27, 2017 to discuss the settlement of their financial issues. No settlement was reached. About 40 minutes after the meeting ended, Mom received the following text messages from the Oldest Son and she had the following exchange:

Son: I am done with you. I am withdrawing from your parental control this second. We r through. U realize what u have done and your actions have consequences and this is the biggest consequence

Mom: Where is this coming from. Why are you now saying this to me [son]. I love you [son]

Son: Things r crashing down. I withdraw from your parental control effective right now.

Mom: What are you saying. Why

Son: U know what u have done.

Mom: What have I done.

Son: I’m not stupid enough to say that on text. I will not be staying with u

Mom: Please call me

Son: No

Mom: Why

Son: I don’t want to talk to you.

Mom: What has happened since yesterday.

Son: Dad cannot battle u when it’s u against us. Me, [Middle Son] and [Youngest Son].

Mom: I don’t understand

Son: Goodbye [Emphasis added]

[38] Mom’s view is that Dad instructed or motivated the Oldest Son to send these text messages indicating that he was “withdrawing from [her] parental control”.

[39] On July 29, 2017 the Middle Son told Mom: “Just so you know, mom, I’m not brainwashed or alienated”. The Oldest Son has not stayed at Mom’s house for most of July 2017.

Pick up of the Children

[40] Mom was scheduled to pick up the children on July 31, 2017 at 10 am from Dad’s house as they were scheduled to spend the next few days with her under the parenting plan.

[41] On July 30, 2017 the Oldest Son asked Mom if she could pick up the children at Noon rather than at 10 am as the Oldest Son was in Muskoka. They had the following text message exchange:

Son: [Middle Son] and [Youngest Son] won’t be coming to u tomorrow fuck the agreement unless pick up is at 12. Can u no do this one thing for me as a mother. I have heard GOOD parents do things like this for their kids to help them out. I will be in a shit mood with u for the entire week. So ur choice mom. Please it would mean so much. I will not be speaking with u unless u can just do this one thing for me.

Mom: Please stop threatening me. I’m sorry you are in the middle. I cannot stop what has been said to you. I told you that I was more than fine you coming back with Ryan’s parents from up north at whatever time they would be driving you home. I told you to let me know and to drop you off at my house. I will pick up your brothers at 10 am. Not sure how picking up your brothers when you’re up north has to do with you. See you tomorrow. Please let me know when you’re leaving Muskoka. Love mom.

Son: Pick up the phone. Now. U can’t send me this text and not call me. Remember this. U think u will be even seeing me tomorrow. Mom I fucking withdrew from your custody. I’m not with u anymore can u not realize that. U better know that I will make sure everyone knows what kind of mom u r to me. U can’t change pick up for two hours cuz u r a stubborn asshole of a mother.

Mom: I’m at [Middle Son’s] game as I’ve told. We have spoken 6-8 times in the last 20 minutes with you threatening me that unless I agree to your dad’s threats of when I pick up my kids you won’t come to me. Is that how a son gets his mom to do what he wants. It’s not even what you want. It’s what your dad wants. Your dad’s threats are now your threats. I love you but I won’t put you in the middle. This must stop. Just so it’s clear I told you can come home tomorrow Mith your friends parents at whatever time they are driving you home. When I pick up your brothers tomorrow is not your concern and has nothing to do with when you come home

Son: Mom shut the fuck yo up. I will tear your life to shreds mom. I am going to make it my mission to ruin ur fucking life. I swear to god when I get home I am going to things to ur house that will deserve u to call the cops. Today. So fucking watch ur back bitch

[42] Mom states that, after this discussion, Dad told the Oldest Son to come home immediately which he did. Mom exchanged the following texts with the Oldest Son:

Mom: [Son] I cannot understand why you would demand that I can’t pick up my other two sons on the day and time I am supposed to get them. I appreciate that things are very difficult for all three of you and that you have been put in the middle and I am sorry that has happened. But I am not involving you. I simply want to pick up my kids, spend time with them. I cannot understand why you coming home tomorrow at 12 should have any effect on when I pick up your brothers. I am their mother and want to spend time with them.

Son: Well if it would help me out to do that why would u not. Now I’m in Toronto and it’s too late. Call me please now. Hey could u please call. Mom please things will get bad. Please call mom. [Emphasis added]

[43] Mom arrived at Dad’s house to pick up the children on July 31, 2017 at 10 am. She waited in her car. After 25 minutes, the Oldest Son came into her car and told her that the other two children were getting ready. Mom went to pick up some groceries. She returned at 11 am. The two youngest eventually came to her car. Mom knocked on the front door of Dad’s house. Dad told Mom in front of the Oldest Son that “[the oldest son] is sixteen and can do what he wants. [Oldest son] told me he was not coming. I left with the other two boys. Mom states that her oldest son continued to text her angry, terrible messages.

ANALYSIS

[44] Dad raised two preliminary issues.

[45] First, Dad submitted that the Oldest Son seeks an adjournment of this motion so he can retain legal counsel to represent him. Dad relies on section 65 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which states “[n]othing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control”. First, I note that there is no evidence to suggest that the Oldest Son had withdrawn from both parents’ control. Second, given that this motion had already been adjourned more than two weeks earlier at Dad’s request, I dismissed this further request for an adjournment on the basis that the Oldest Son had not appeared to make the request nor had any notice been given of such request.

[46] Second, Dad submitted that the text messages found in Mom’s affidavit be struck as contrary to section 193.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 which states:

Every person who wilfully uses or discloses a radio-based telephone communication or who wilfully discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, if

(a) the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made;

(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication; and

(c) the person does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication.

[47] The text messages sent by the children to Mom were not “intercepted” by Mom and thus they do not contravene the above provision.

[48] While some of the text messages found in Mom’s affidavit were screen shots of text messages sent between the children or between the children and Dad, and, without deciding the matter, arguably “intercepted” by Mom, none of those have been considered in deciding the merits of whether this family should be required to participate in the Families Moving Forward Program.

[49] Sadly, as described above, there is an overwhelming amount of evidence, largely derived from Dad’s own statements, conversations between Mom and Dad, Mom and the children as well as text messages exchanged between Mom and the children, which justifies the order the sought by Mom.

ISSUE #1: IS THE CONSENT OF THE CHILDREN REQUIRED FOR THEM TO ATTEND THE FAMILIES PROGRAM?

[50] Dad submits that the Families Program is “treatment” which requires the consent of the participants under section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A:

No treatment without consent

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

[60] There is no evidence that any of the children have refused to participate in the Families Program. There is no evidence that Dr. Fidler is a “health practitioner” within the meaning the of HCCA. In any event, I am not satisfied that the Families Program whose purpose is to prevent strained family relationships constitutes “treatment” within the meaning of s. 2 of the HCCA given its focus on treatments that have a “health related purpose”. Further, given that the Families Program is designed to ameliorate the family relationship and, as such, poses little or no risk of harm to the parties or the children, I find that it would in any event be excluded from the definition of “treatment”.

ISSUE #2: IT IS IN THE BEST INTERESTS OF THE CHILDREN TO REQUIRE MOM, DAD AND THE CHILDREN TO ATTEND THE FAMILIES PROGRAM?

[51] Mom submits that this Court’s parens patriae jurisdiction should be used to order that the parties and their children should be required to attend the Families Program. The Children’s Law Reform Act deals with custody and access issues. Section 69 of the CLRA provides that “[t]his Part does not deprive the Superior Court of Justice of its parens patriae jurisdiction. However, this jurisdiction is limited to filling “gaps” in the legislation: H.E. v. M.M., 2015 ONCA 813, para. 26.

[52] There is nothing in the CLRA that expressly provides this court with the authority to make the order sought by Mom and, accordingly, I find that I have the parens patriae jurisdiction to make the order sought.

[53] Dad submits that there is affidavit evidence from three family friends which states that the children have not been alienated. The affidavits make no such broad statement. They merely state that, at the end of July, 2017, they saw Mom with the two youngest sons on two occasions and in their view they did not see the two boys acting differently towards Mom that they had in the past. That Dad would seriously suggest that this third party superficial observation, which does not mention the Oldest Son, was persuasive evidence that the children’s relationship with their Mom has not been problematic is disturbing given the episodes described above.

[54] As noted earlier, the parenting plan is not being respected in letter or spirit. As a consequence, the children are needlessly suffering. Accordingly, I find that it is in the best interests of the children to grant the Order that sought by Mom.

Conclusions

[55] In addition to ordering that the parties and the children attend the Families Moving Forward Program with Dr. Barbara Fidler on or before August 15, 2017, I will also hear all case conferences, motions and the trial, other than settlement conferences, brought in this Application until its final resolution. Case conferences shall be held on a regular basis with the parties. I have arranged for, and the parties have agreed to attend, a settlement conference before Justice Speigel on August 23, 2017. The parties shall also attend a case conference, to be held by telephone, on August 24, 2017 at 8:30 am. The Trial Co-Ordinator shall provide the parties with the call-in details. I hope, for the sake of their children, that the parties will report to me on the 24th that they have resolved their differences.

Mr. Justice M. D. Faieta

Released: August 14, 2017