CITATION: McClintock v. Karam, 2017 ONSC 6633

COURT FILE NO.: 4332/15

DATE: 2017 10 13

Corrected Date: October 18, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kelly McClintock, Applicant

AND:

Joshua Karam, Respondent

BEFORE: Woollcombe J.

COUNSEL: Catherine A. Haber, Counsel for the Applicant

Michael Stangarone, Counsel for the Respondent

HEARD: October 11, 2017

Corrected Endorsement

Corrected Endorsement: The text of the original endorsement was corrected on October 18, 2017 and the description of the correction is as follows:

Paragraph 30, the word staring was changed to read starting

Paragraph 38, 2^nd^ sentence, the word not was inserted

Paragraph 40, 1^st^ sentence, the initials of child S was changed to child O.K.

[1] The respondent father, Mr. Karam, brought a motion seeking:

a. immediate resumption and enforcement of the court-ordered parenting schedule for the parties 13-year-old daughter;

b. an order for the appointment of Therapeutic Reunification Therapist (“TRT”) Andrea Barclay for his daughter; and

c. sanctions against Ms. McClintock for her breaches of the existing parenting schedule.

[2] At the oral hearing of the motion, it became clear that while Mr. Karam wishes to resume access with his daughter, he realizes that it is not in her best interest for an order to be made to enforce the existing access order, given that he has not had any access with her since June 19, 2017. As such, he narrowed the focus of his motion to request an order appointing Andrea Barclay as a TRT for his daughter and for Ms. Barclay to immediately begin her work. He also seeks an order requiring that the daughter attend for counselling with Ms. Barclay. Finally, he asks the costs of the counselling be shared between the parties.

[3] The applicant mother, Ms. McClintock, is opposed to any order being made for the child to have a TRT appointed pending the completion of an ongoing assessment under s. 30 of the Children’s Law Reform Act R.S.O. 1990, c.C.12 (“C.L.R.A”).

Summary of Relevant History of the Proceedings

[4] The parties were married on September 29, 2001. They separated on August 5, 2005. They were divorced on December 22, 2006. They have one child, O.K., born March 30, 2004. She is now 13 years old.

[5] The parties entered into a Separation Agreement dated February 15, 2008. The parties agreed that they would have joint custody of O.K., but that she would reside primarily with the applicant mother.

[6] Things were apparently relatively amicable until 2011 when Mr. Karam made plans to remarry. Ms. McClintock then advised that she planned to relocate with O.K. from Toronto to Burlington. The father was opposed to this.

[7] The parties entered into discussions about amending the Separation Agreement. No Amending Agreement was signed although correspondence between counsel suggested that they had reached an agreement. Ms. McClintock took the position that there was no agreement and applied in the Ontario Court of Justice for an order for sole custody of O.K..

[8] Mr. Karam then brought a motion for summary judgment dismissing Ms. McClintock’s Application on the basis that the court lacked jurisdiction to hear it. He said that the parties had entered into an amending separation agreement and had conferred jurisdiction to resolve custody and access issues on a mediator/arbitrator.

[9] The matter came before O’Connell J. after Mr. Karam moved for final judgment in accordance with the terms of an agreed upon Amending Agreement. Justice O’Connell granted the father’s motion on March 26, 2013. Ms. McClintock subsequently signed the Amending Separation Agreement dated April 23, 2013. That Amending Agreement sets out the existing order for custody and access. It also provides that custody and access disputes be subject to mediation and arbitration.

[10] After O’Connell J.’s Order, the parties agreed to have Gary Direnfeld appointed as mediator/arbitrator. That process did not go smoothly. On February 17, 2015, Justice Gray removed Mr. Direnfeld on the basis of a reasonable apprehension of bias on his part and on the basis that he had not treated Ms. McClintock fairly. Justice Gray ordered that Alfred Mamo replace Mr. Direnfeld with respect to arbitration. He also appointed Herschel Fogelman as mediator/arbitrator under the Amending Agreement.

[11] On November 12, 2015, Ms. McClintock served Mr. Karam with a Superior Court Application. She sought child support. In his Answer, Mr. Karam sought sole custody of O.K. and that she reside primarily with him.

[12] Ms. McClintock then brought a motion for an order dismissing Mr. Karam’s claims and deferring them to mediation/arbitration. Mr. Karam brought a cross-motion for a s. 30 assessment and counselling for O.K..

[13] Gibson J. heard these motions on August 26, 2016. On November 9, 2016, Gibson J. dismissed Ms. McClintock’s motion to stay or dismiss Mr. Karam’s claims pertaining to custody and access. He made an order, pursuant to s. 30(1) of the Children’s Law Reform Act for an assessment to be done of O.K.’s needs, with costs shared equally between the parties. Finally, he ordered that O.K. was to attend for counselling with a mutually agreed upon counsellor, with costs shared between the parties.

[14] Ms. McClintock commenced an appeal to the Court of Appeal. The appeal was heard on March 30, 2017. The Court of Appeal concluded that the Gibson J. order was interlocutory and quashed the appeal.

[15] Counsel for Mr. Karam then wrote to Ms. McClintock’s counsel proposing that Sol Goldstein or Barry Brown be retained to conduct the s. 30 assessment. There was some delay before the parties eventually agreed upon the name of the assessor.

[16] In terms of access, Mr. Karam has not seen O.K. since June 19, 2017. The reasons for this are disputed between by the parties.

[17] Based on the material before me, it appears on August 3, 2017, Ms. McClintock accepted Mr. Karam’s offer that Lourdes Geraldo be appointed to conduct the assessment and that Sim Gill provide counselling for O.K.. Mr. Karam brought a 14B motion seeking a court order in respect of the parties’ agreement. On September 30, 2017, Gray J. signed an order appointing Lourdes Geraldo to conduct the s. 30 custody and access assessment and appointing Sim Gill to provide counselling to O.K..

[18] The parties have each made allegations about the other’s role in delaying the work of the counselling and the assessor.

[19] There was a conference call between counsel for the parties and the assessor, Ms. Geraldo, on September 20, 2017. Ms. Geraldo has not indicated when her report will be completed. Ms. McClintock says that Ms. Geraldo has meetings scheduled to obtain information for her s. 30 assessment up until November 3, 2017. Mr. Karam says that Ms. Geraldo advised him that the process would normally take between three and four months, which would be until late December 2017 or late January 2018. Ms. Geraldo has advised that she anticipates having a disclosure meeting with the parties in December.

[20] Mr. Karam says that during the conference call, Ms. Geraldo raised for the parties’ consideration retaining Andrea Barclay as a Therapeutic Reconciliation Therapist, “given that I have not seen O.K. in over three months and to assist with our ongoing challenges while the s. 30 assessment is being conducted.” Further, Mr. Karam states that Ms. Geraldo “advised that the TRT would begin work as soon as possible and would work in conjunction with the assessor to provide Ms. Geraldo with the ability to provide more fulsome recommendations in the context of her s. 30 custody and access assessment”.

[21] Ms. McClintock points out that Ms. Geraldo did not make a recommendation that Ms. Barclay be retained. Counsel emphasizes that it would be premature for the assessor to make recommendations of that sort at such an early stage of her assessment. It is undisputed, however, that Ms. Geraldo raised the issue with counsel for the parties’ consideration. Ms. McClintock does not dispute that Ms. Geraldo said that Ms. Barclay would assist her in providing more fulsome recommendations.

[22] Mr. Karam’s counsel has confirmed that Ms. Barclay is available to conduct this therapy. I have been provided with Ms. Barclay’s CV and a copy of the proposed Family Treatment Agreement she provided to Mr. Karam. There is no issue that Ms. Barclay is a trained social worker with experience in providing social work services to families in a variety of circumstances. She describes her practice as including “providing therapeutic reunification to families who have children who are at risk of being estranged from a parent or who are estranged from a parent”.

Positions of the Parties

[23] Mr. Karam says that he should have had access to O.K. regularly over the last four months, including for longer periods over the summer, and that he has not seen O.K. since June 19, 2017. Mr. Karam says that he is deeply concerned that Ms. McClintock is alienating O.K. from him, inappropriately influencing O.K., and putting O.K. in a position between her parents. He says that the court should order that O.K. have reunification therapy with Ms. Barclay immediately.

[24] Mr. Karam has filed a reply affidavit in which he asserts that there does not need to be a finding of alienation for there to be reconciliation or reunification therapy. But, he insists that steps need to be taken immediately for him to be reunited with his daughter and that delaying therapy will make things worse.

[25] Mr. Karam also submits that Ms. Barclay will be able to work with both Ms. Gill and Ms. Geraldo as Ms. Geraldo completes her s. 30 assessment.

[26] Ms. McClintock says that O.K. has views and preferences which were not taken into account when the parenting schedule was determined some years ago. She says that the law is clear that it is in the child’s best interests for her voice to be heard and that it has not been heard to date. She insists that the s. 30 assessment will allow O.K.’s voice to be heard and that absent the assessment, the court cannot make a determination that TRT is what O.K. needs. Indeed, she says that there is an absence of evidence that reunification therapy is in the child’s best interests. It is Ms. McClintock’s position that there is no urgency to the father’s request and that this is indicative of his tendency to claim urgency when it is not present.

[27] Moreover, Ms. McClintock says that no court has ever determined that she has committed parental alienation and that she has not done so. She says that the child is 13 years old and that she is entitled to have the preference to spend time with her friends in Burlington and not her father, particularly when that time is in Toronto or New York City. I am asked to accept that the child may well have legitimate reasons for not wanting to go with her father for access visits and to accept that there needs to be a professional determination made as to why she does not want to go for access visits before TRT is started. Finally, Ms. McClintock says that O.K. is already attending counselling with Ms. Gill and that having another counsellor, in addition to the assessor, could negatively affect O.K.'s mental health.

Should the court order therapeutic reunification therapy?

[28] The parties agree that the court has jurisdiction to order counseling in the form of TRT. That jurisdiction arises from ss. 24(2) and 28(1) (b) and 28(c)(vii) of the C.L.R.A. Caution should be exercised when considering the circumstances in which such an order would be appropriate and, if ordered, in defining the parameters of third party involvement.

[29] I have carefully reviewed the summary of principles set out by Jarvis J. in Testani v. Haughton 2016 ONSC 5827 at para. 18 that he suggests guide a court’s decision as to whether to order reunification therapy:

a. Such orders should be made sparingly.

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

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

d. Resistance to therapy is an important factor, but is not determinative as to whether such an order should be made;

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

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

[30] I have concluded that Ms. Barclay should be appointed to conduct therapeutic reunification therapy in respect of O.K., starting immediately. I have reached this conclusion for several reasons.

[31] First, I am deeply troubled by the fact that O.K. has not seen her father for almost four months. I need not make any finding about the reason for this. I specifically decline to comment on whether this is a case of parental alienation or whether this is a case in which O.K. is asserting her own, legitimate views entirely in the absence of any parental alienation by Ms. McClintock. In my view, it does not matter.

[32] The starting point is that O.K. and her father have had regular access visits for years. There is a history of a good relationship between them. While issues about this access time may have emerged over the last year or more, access consistently took place. It stopped shortly after O.K. turned 13.

[33] There is no evidence before me that there is any prospect of access resuming before the completion of Ms. Geraldo’s assessment, which appears to be at least another two to three months. There has been no precipitating event identified as the cause of the end of access. There is no evidence that access time with the father poses any risks to the child’s physical or mental well-being. The law is clear that children have a right to maximum contact with both of their parents, as long as it is in their best interests: Gorden v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at paras. 24-25. The maximum contact principle is an important factor in determining the child’s best interests.

[34] There has never been any issue that the child should have time with her father. The s. 30 assessment, which was ordered before access had stopped, is not to determine whether there should be access. It is about how to strengthen the bond between them. There has been a very brief period of estrangement. In my view, in this case, there is every reason to find that the longer the child goes without access to her father, the more likely it is that there will be long lasting damage to their relationship. This is not in the child’s best interests. In the circumstances before me, I find that the sooner the estrangement it is stopped, the better.

[35] Second, I find that there is compelling evidence that the TRT will be beneficial for the child. It will be beneficial in two respects. First, as I have already indicated, it will begin the process of ending the undesirable estrangement that has recently developed between the child and her father. Second, and just as importantly, the assessor has said that it would assist in her assessment process. This makes a great deal of sense to me. The assessor has indicated that Ms. Barclay would work with her and assist her to provide more fulsome recommendations.

[36] Ms. Geraldo’s indication that TRT would assist her in the assessment is significant. Its importance warrants over-riding what Ms. McClintock claims is the guiding general principle that reunification therapy should not be started pending an assessment. When an assessor thinks the therapist’s involvement would assist in the assessment, I am inclined to be guided by that.

[37] Third, I observe that there is no evidence here that there is resistance from the child to therapy with Ms. Barclay. Even if she were, that would not be determinative.

[38] Fourth, while I appreciate the importance of the child’s voice being heard, her views and preferences are but one of several factors to be taken into account in determining access. The law does not accept that a 13 year old’s views about access are determinative. In other words, it is not acceptable for Ms. McClintock’s answer to the fact that there has been no access since June to simply be that her now teenaged daughter is independent and is choosing not to see her father.

[39] Parents governed by access orders cannot simply leave access up to the children: Hatcher v. Hatcher (2009), 2009 CanLII 14789 (ON SC), 68 R.F.L. (6^th^) 179 (Ont.S.C.) at paras 27-28. As Mossip J. observed in Reeves v. Reeves (2001), 102 A.C.W.S. (3d) 1116 (Ont.S.C.) at para. 38, “any support and 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”. Parents must do what is good for their children – including sending them to school, to the doctor or dentist or to the other parent – even if the child would, left to his or her own devices, make a different choice.

[40] Although a child's wishes, particularly the wishes of a child of O.K.'s age, should certainly be considered by a court prior to making an access order, once the court determines that access is in the child's best interests, a parent cannot leave the decision to comply with the access order up to the child. Rather, parents have a "positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Godard v. Godard, 2015 ONCA 568, 65 R.F.L. (7th) 265 at para. 28.

[41] Ms. McClintock says that she has tried to ensure that there was access. I need not determine whether her efforts have been existent or sufficient. Whatever she has done, it has not led to Mr. Karam and O.K. having time together. The pattern that has evolved is one in which, at least from Ms. McClintock’s perspective, the child’s decisions appear to be dispositive. I cannot accept that this pattern can be allowed to continue for two or three more months.

[42] Fifth, I do not accept the concern raised by Ms. McClintock that the implementation of immediate TRT could be detrimental to O.K.’s mental health. There is no basis in the evidence to suggest that Ms. Barclay would work in some way that is in conflict with the work that Ms. Gill and Ms. Geraldo are doing. I think that each of the three professionals involved with O.K. will each have different, yet complimentary roles. Ms. Gill is engaging in therapy with O.K. alone. Ms. Geraldo is not providing therapy, but is preparing an assessment. The role of Ms. Barclay, as TRT counsellor, would be to meet with O.K. and each of the parties, to hear everyone’s views and concerns, and then to determine how to address them. Both Ms. Gill and Ms. Geraldo would need to work with the TRT counsellor. The evidence is that they are agreeable to do so. In these circumstances, I have little cause for concern about a negative impact of this team approach on the child.

[43] I conclude that an order should be made appointing Andrea Barclay as Therapeutic Reconciliation Therapist to immediately commence her work with this family in tandem with the s. 30 assessment as contemplated by Ms. Geraldo. Ms. McClintock, Mr. Karam and O.K. shall attend with Ms. Barclay for the purposes of reconciliation therapy as directed by Ms. Barclay, failing which either party may bring a motion for compliance and sanctions.

[44] The cost of the therapy with Ms. Barclay will be shared equally by the parties.

Costs

[45] The parties did not make submissions respecting costs. If they are unable to reach an agreement as to the costs of this motion, they may make submissions in writing. Submissions are to be not longer than three pages, double spaced, in 12 point font, in addition to any bill of costs and caselaw.

[46] I view the respondent, Mr. Karam, as the more successful party on the motion. He shall have ten days from the release of this endorsement to file his costs submissions. Ms. McClintock shall have seven days to respond. There will be no reply without leave of the Court.

Woollcombe J.

Date: October 13, 2017

Corrected Date: October 18, 2017