JF&CS v. W.K. & T.L., 2017 ONSC 915

CITATION: JF&CS v. W.K. & T.L., 2017 ONSC 915

NEWMARKET COURT FILE NO.: FC-14-45804-00

DATE: 20170213

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Jewish Family and Child Service of Greater Toronto, Applicant

and

W.K., Respondent

and

T.L., Respondent

BEFORE: The Honourable Mr. Justice Kaufman

COUNSEL: S. Westreich, Counsel for the Applicant A. Macri, Counsel for the Respondent B.D. Siegel, Counsel for the Respondent W. Kitchen, Counsel for the child K.K. G. van Hoogenhuise, Counsel for the child J.K.

HEARD: September 22, 2016

ruling on motion

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

[1] This application commenced in June 2014 wherein the applicant “JF&CS” sought a finding that the two children of the subject marriage were in need of protection due to exposure to adult conflict between their parents.

[2] The motion which is the subject matter of this Ruling was originally returnable on October 20, 2015 wherein JF&CS sought an order granting leave to withdraw the Protection Application and terminating an earlier Order granted by Justice Nicholson on June 12, 2014 wherein the Office of the Children’s Lawyer was appointed to represent both children, being K.K., born […], 2001 and J.K., born […], 2004. That Order also provided that neither parent would make any disparaging comments about the other parent and shall discourage any such negative comments by either child. Each parent was to encourage the children to have a beneficial and meaningful relationship with the other parent. It also provided for K.K. to continue counselling with the named therapist Neal Solomon.

Relevant Background Information

[3] The respondents were married in 1998, separated in 2008 and divorced in 2009. In the interim, litigation was commenced in 2008, culminating in the execution of a Final Consent dated September 28, 2010 which served as the basis for a comprehensive Separation Agreement being signed on April 11, 2011.

[4] The Separation Agreement provided for the respondent parents to have joint custody of the children while equally sharing parenting time with them.

[5] The respondent parents encountered difficulties in communicating with one another. K.K.’s relationship with his mother began to deteriorate. The respondent mother blamed the respondent father for involving K.K. in the parental dispute leading to the deterioration of the mother/son relationship. The respondent father maintained that the mother was, essentially, responsible for the deterioration in that relationship.

[6] In January, 2014 K.K. commenced treatment with a therapist Neal Solomon. On March 4, 2014 Mr. Solomon contacted JF&CS with respect to concerns about emotional harm to K.K. due to his belief that K.K.’s father was undermining the therapeutic process and negatively influencing K.K. against his mother.

[7] On May 7, 2014 W.K. withdrew his consent to K.K. participating in therapy with Mr. Solomon resulting in the commencement of the protection application and the consent Order of Justice Nicholson granted on June 12, 2014.

[8] On July 24, 2014 the parties appeared in my court. Continued counselling was ordered between K.K. and Mr. Solomon. The issues of payment for the counselling and the planning of K.K.’s Bar Mitzvah were placed on the agenda for the next scheduled conference and the grandparents and significant others for both parties were invited to attend.

[9] On October 2, 2014 the court was advised that W.K. had arranged and held a private Bar Mitzvah for K.K. which excluded the respondent mother and her extended family. The respondent father had chosen to disregard both the direction of the court and the JF&CS.

[10] Thereafter all counsel consulted with Dr. Barbara Fidler. After being apprised of the family dynamics and ongoing concerns, Dr. Fidler opined that counselling involving all family members was required with both parents assuming financial contribution to reflect their assumption of responsibility for the family problems.

[11] On December 18, 2014 the parties consented to an Order that they would retain Ms. Ilana Tamari to work with the family as a therapist.

[12] On April 21, 2016 the parties consented to an Order that they would retain Howard Hurwitz to conduct open mediation on issues impacting the family unit.

[13] On September 22, 2016 argument concluded on the applicant’s pending motion to withdraw. The matter was adjourned to determine if the parties could enter into a Statement of Agreed Facts. The adjourned date was vacated when it became apparent that there was to be no agreement.

Submissions

[14] I have reviewed the affidavits filed by Ms. Elsner on behalf of JF&CS (August 30, 2016), the respondent mother (September 8, 2016) and the respondent father (September 13, 2016). I also have my notes regarding submissions by OCL counsels representing the children.

[15] From the perspective of JF&CS, I accept Ms. Tamari’s opinion that K.K. has been placed in the middle of the parental conflict by his father more than his mother. I also accept that on the face of the issue, the father has not been cooperative with Mr. Hurwitz. I was unable to read Ms. Tamari’s Therapy Report which was not attached as Exhibit “A” to Ms. Elsner’s affidavit but I accept her summary contained within her affidavit as neither parent has taken dispute with it. It is also my impression that W.K. does not support T.L.’s role as a parent in a meaningful way. I think the simplest description of the parties’ relationship is that the mother dislikes the father and the father hates the mother. I believe that continued involvement with Ms. Tamari would benefit K.K. as the ongoing therapy has apparently impacted K.K.’s relationship with his mother in a positive way. Unfortunately it appears that K.K. has taken offence to comments from Ms. Tamari regarding his father and is not inclined to meet with her further notwithstanding the fact that he continues in the midst of the parental conflict. I also have concerns of future negative impact on J.K. who, at this stage in time has apparently not shown negative signs of being impacted by the ongoing inability of her parents to communicate in a meaningful way. Due to her age, if, unfortunately, she is negatively impacted, there is recourse for further involvement by JF&CS if warranted under the then-prevailing legislation.

[16] From the perspective of T.L., the respondent mother, it is evident that she would prefer more meaningful involvement by W.K. in mediation and in discussion concerning the children. She has depicted the tone of the current relationship with W.K. by the exchange of communication between them contained within her affidavit. Her fear that K.K. will terminate the shared parenting arrangement upon turning 16 is real but if he was so inclined, he may well have done this earlier, thereby challenging the court’s authority to have him do otherwise. In the event this fear does materialize, contemplated amendments to the legislation may allow for further Societal intervention if deemed warranted at the time. However, K.K. has indicated to Ms. Tamari that he rates his time with his mother as almost equivalent to time spent with his father. It cannot be the role of this court to involve itself until such time as the parents achieve an equal rating. T.L. should accept that her perseverance has allowed her to assume responsibility for some of the factors that were apparently of concern to K.K. and that their relationship has shown improvement since JF&CS became involved. As of this date, J.K. has not shown that she is impacted by the ongoing inability of her parents to communicate in a meaningful way. If that changes and protection concerns arise, there is recourse available.

[17] From the perspective of W.K., the respondent father, I am satisfied that if so inclined, he could have done much better in this process. He is quite correct that Mr. Hurwitz’s role was as a mediator, as I ordered and not as a parenting coordinator nor a therapist. He is also correct that the screening process should have been completed at the onset of Mr. Hurwitz’s involvement and perhaps W.K.’s time availability was deserving of more respect. However, an overall review supports the conclusion that W.K. has shown an inability and unwillingness to cooperate to better his working relationship with T.L. He is frustrated that she would correspond with Mr. Hurwitz to create an agenda for discussion without having discussed the issues with him beforehand so he refuses to participate. If he perceives there are no issues, he delegitimizes T.L.’s concerns.

[18] However, I have reviewed the Communication and Decision Making Journal attached to his affidavit. Even from an optics perspective, it would have been preferable for this Journal to have been included in Ms. Elsner’s affidavit so as to indicate to W.K. that the JF&CS had considered it. I have also considered W.K.’s affidavit and in particular paragraph 19 which indicates that in over eight years since separation, the children have not missed any of the events listed therein, including family time, vacations, registrations and medical appointments. I have further reviewed the exchanges between the parents regarding K.K.’s Bar Mitzvah contained within the Continuing Record. At best, these exchanges reflect an absolute failure of adults (including non-parties) to place the interests of the children ahead of their own level of discomfort. W.K.’s comments that the children have not missed any significant events as depicted in his affidavit, however, belies the fact that what they have missed is having both parents and extended family members such as grandparents present at milestone events.

Analysis and Conclusion

[19] The children’s lawyers have indicated to me that the children are progressing well. JF&CS indicate that the children are doing well enough. They indicate that the relationship between T.L. and K.K. seems to be well-supported by the counselling services of Ms. Tamari. The children are apparently functioning well in their various pursuits and do not seem to be deriving any real benefit from the services available from JF&CS. In fact it is this court’s findings that the children are succeeding quite well despite the parental conflict. J.K. displays no ill-effects from it. K.K. is progressing well in school while balancing his pursuit of a hockey scholarship. Of particular interest are the concluding comments from W.K. acknowledging that K.K.’s relationship with his mother has substantially improved with the involvement of Ms. Tamari and as he says, “that was our goal all along and it has finally been achieved. Therefore there is no need for further court involvement and I remain committed to following through with counselling with Ms. Tamari.” In light of K.K.’s apparent reluctance to meet with Ms. Tamari any further, it will be interesting to ascertain if W.K. is a man of his word.

[20] The court is left wondering how much better the children would succeed if given a better working relationship between their parents. Will the children wish to attend their own graduations and will they be able to benefit from the presence of both families? Will they ever wish to marry or will they prefer to either elope or remain unmarried to avoid having their families interact? However, JF&CS has limited resources available and it does not see any ongoing benefit in stretching its resources to this family unit at the present time given the circumstances described above. Currently there are no child protection concerns as reflected in the governing legislation. There are certainly ongoing concerns but not, today, of a child protection nature. It is not the role of this court to rate parents either individually or against one another. Individually, the parents are meeting the legislative needs of the children. Collaboratively they could do so much better. As tempting as it is to remain involved, there is no basis for this court to do so. The court must balance its role in the primary objectives of the Family Law Rules O. Reg. 114/99 as amended by ensuring that the procedure is fair to all parties while giving appropriate resources to the case while taking account of the need to give resources to other cases.

[21] There will be a final Order that the respondent parents will not make any disparaging comments about the other parent or allow others to do so in the presence of the children and they shall discourage any such negative comments by either child. Each parent will encourage the children to have a beneficial and meaningful relationship with the other parent. Subject to this provision the relief sought by the applicant in its motion is granted and the Protection Application dated June 4, 2014 is hereby withdrawn.

[22] I have reviewed the provisions of Rule 24 and do not require submissions. This is not an appropriate case for costs.

Justice Kaufman

Date: February 13, 2017