Barrett v. Huver

Ontario Reports

Ontario Superior Court of Justice,

D.C. Shaw J.

April 11, 2018

141 O.R. (3d) 741 | 2018 ONSC 2322

Case Summary

Family law — Children — Parties having joint custody of their two children — Children living with mother — Father alleging that mother was alienating children from him — Father bringing motion for order requiring parties and children to attend multi-day family reunification therapy — Mother rejecting therapy proposal — Motion dismissed — Counselling requiring co-operation of both parents — Proposed therapy constituting "treatment" within meaning of Health Care Consent Act — Consent of mother and children required — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.

The parties had joint custody of their two children, who lived with the mother. The father alleged that the mother was systematically alienating the children from him. He brought a motion for an order requiring the parties and the children to attend a multi-day family reunification therapy program.

Held, the motion should be dismissed.

The father had not established that the breakdown in his relationship with the children resulted from an alienation effort by the mother. [page742]

Counselling requires the co-operation of the parents. The mother rejected the counselling proposal. Moreover, the program expressly required that the parents consent to the therapy. As the proposed therapy was "treatment" within the meaning of the Health Care Consent Act, 1996, it would require the consent of the mother and, presumptively, the children. Finally, the estimated costs of the program were such that evidence of the likely success of the program and of the financial ability of the mother, as the objecting party, to pay one-half of those costs would be required.

Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275, 249 D.L.R. (4th) 620, 194 O.A.C. 106, 10 R.F.L. (6th) 373, 136 A.C.W.S. (3d) 860 (C.A.); T. (E.) v. D. (L.), [2017] O.J. No. 4222, 2017 ONSC 4870, 98 R.F.L. (7th) 324, 282 A.C.W.S. (3d) 815 (S.C.J.); Testani v. Haughton, [2016] O.J. No. 4820, 2016 ONSC 5827, 92 R.F.L. (7th) 226, 270 A.C.W.S. (3d) 805 (S.C.J.), consd

Other cases referred to

Bruni v. Bruni (2010), 104 O.R. (3d) 254, [2010] O.J. No. 5148, 2010 ONSC 6568, 100 R.F.L. (6th) 213, 195 A.C.W.S. (3d) 446 (S.C.J.); Children's Aid Society of Toronto v. S. (M.), [2018] O.J. No. 123, 2018 ONCJ 14; F. (A.) v. W. (J.), [2011] O.J. No. 2953, 2011 ONSC 1868, 6 RF.L. (7th) 282, 95 W.C.B. (2d) 487, 204 A.C.W.S. (3d) 533 (S.C.J.); L. (N.) v. M. (R.R.), [2016] O.J. No. 601, 2016 ONSC 809, 76 R.F.L. (7th) 428, 264 A.C.W.S. (3d) 149 (S.C.J.); Williamson v. Williamson, [2016] B.C.J. No. 343, 2016 BCCA 87, 74 R.F.L. (7th) 18, 383 B.C.A.C. 135, 395 D.L.R. (4th) 510, [2016] 7 W.W.R. 263, 262 A.C.W.S. (3d) 969

Statutes referred to

Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 24(2) [as am.], 28(1)(b), (c)(vii)

Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 2 [as am.], (1) [as am.], 4 [as am.], 10, (1)

Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 1 [as am.]

Rules and regulations referred to

Child Support Guidelines, O. Reg. 391/97, s. 7 [as am.]

MOTION for an order requiring the parties and their children to attend a therapy program.

E. Peltokangas, for applicant.

L. Stam, for respondent.

[1] D.C. SHAW J.: — The respondent, Mr. Huver, brings a motion requesting an order that the parties and their two children attend a multi-day family therapy intervention program. The applicant, Ms. Barrett, opposes the motion.

Background

[2] The parties were married on July 27, 2001. They separated in April 2009.

[3] There are two children of the marriage: Cohen Barrett Huver, born May 8, 2003; and Ryah Saige Huver, born December 30, 2005. [page743] The children are 14 and 12 years of age, respectively. Cohen will be 15 years of age in approximately one month.

[4] In October 2012, the parties signed minutes of settlement resulting in a divorce order dated December 21, 2012. The order provided that the parties were to have joint custody of the children, with the children to have their primary residence with Ms. Barrett and to be in her day-to-day care and control. Mr. Huver was given reasonable access to the children in accordance with a schedule attached to the order. In addition, the parties were to share the children's holiday time equally. Mr. Huver was required to pay child support to Ms. Barrett of $1,500 per month. The parties were required to share expenses under s. 7 of the Child Support Guidelines, O. Reg. 391/ 97 in proportion to their respective incomes.

[5] Mr. Huver is a paramedic. He also has a business providing medical services to companies. Ms. Barrett is a teacher.

[6] Mr. Huver's work schedule has changed a number of times, which has affected the times of his access. In August 2016, he was dismissed from his employment with ORNGE (Ontario Air Ambulance). He worked briefly for a company north of Sioux Lookout. In December 2016, he took employment in Yellowknife. His work schedule with that employer has been subject to changes, as recently as January 30, 2018. Mr. Huver returns to Thunder Bay from Yellowknife for extended periods when he is not required to be at his job.

[7] Mr. Huver alleges that Ms. Barrett has refused to change the access schedule under the December 21, 2012 divorce order, notwithstanding the several changes in his work schedule, such that his time with the children has been reduced from just under 40 per cent of the time to 10 per cent to 15 per cent of the time.

[8] Ms. Barrett alleges Mr. Huver's work schedule has been ever-changing and that he has expected her to accommodate his schedule changes at the last moment. She alleges that she has met with Mr. Huver to try to accommodate the changes in his schedule but that it has been extremely difficult to reach any compromise. She states that anything she proposes is summarily dismissed and if she does not give in to his demands, he becomes angry and verbally abusive.

[9] The respective affidavits of the parties are replete with accusations of bad behaviour towards one another and towards the children. Mr. Huver alleges that Ms. Barrett has alienated the children from him. Ms. Barrett alleges that it is Mr. Huver's behaviour that has caused the children to become estranged from him. [page744]

[10] Both parties agree that the separation has long been one of high conflict and acrimony.

[11] As of the fall of 2016, Cohen stopped wanting to stay overnight with Mr. Huver. Since August 2017, Cohen has refused to see Mr. Huver and has not communicated with him. Mr. Huver says that there has been a breakdown in his relationship with Cohen and that his relationship with Ryah has started to break down.

Discussion

[12] Mr. Huver requests an order that the parties be required to forthwith engage the services of Families Moving Forward. Families Moving Forward describes itself in materials filed on the motion by Mr. Huver as "A Multi-Day Intervention for Separated Families When Children Resist Contact with a Parent." The materials from the organization refer to "clinicians" and "therapists" and identify Dr. Polak, Ms. Popielarczyk and Mr. Hurwitz as members of the College of Social Workers of Ontario, and Dr. Fidler as a member of the College of Psychologists of Ontario. Counsel for Mr. Huver describes the proposed program as family reunification therapy.

(a) Alienation

[13] Mr. Huver brings his motion on the grounds that the breakdown in his relationship with Cohen, and the increasing breakdown in his relationship with Ryah is a result of Ms. Barrett's actions to systematically alienate the children from him.

[14] As noted by R.J. Spence J. in Children's Aid Society of Toronto v. S. (M.), [2018] O.J. No. 123, 2018 ONCJ 14, at para. 120, the entire construct of alienation is something which is a matter of considerable debate.

[15] In F. (A.) v. W. (J.), [2011] O.J. No. 2953, 2011 ONSC 1868 (S.C.J.), at para. 168, Harper J. stated:

I find that it is not necessary or helpful to engage in the controversy within the clinical profession about the merits of concepts of parental alienation, realistic estrangement, or family systems based "alienated child" approach. I do find that the focus on the concept of parental alienation creates an environment that could lead to narrow and limiting analysis of very complicated dynamics of family interaction that must be understood to find a solution that has the best chance of success. In this case, the pursuit of the label of PAS [Parental Alienation Syndrome], diverted many of the professionals.

[16] In Williamson v. Williamson, [2016] B.C.J. No. 343, 2016 BCCA 87, the British Columbia Court of Appeal considered an appeal from an order that arose from an applciation by the mother [page745] that the four children of the family attended inpatient counselling at a Family Reflections Reunification Program in Kelowna. The mother alleged alienation, the existence of which and its root causes were hotly disputed by the father. The British Columbia Court of Appeal observed, at paras. 47-48, that alienation was a serious allegation. The court held that expert evidence was required to support a finding of alienation on the part of either party and to support a finding that proposed responses, including a family reunification program, were in the best interests of the children.

[17] It is impossible for me to determine on the competing, contradictory affidavits, untested by cross-examination, and in the absence of any expert evidence, the reason or reasons for the fractured relationship between Mr. Huver and Cohen, and the apparently deteriorating relationship between Mr. Huver and Ryah.

[18] On the material before me, there is no more reason to find alienation on the part of Ms. Barrett than there is to find estrangement arising out of Mr. Hover's conduct towards Ms. Barrett and the children.

(b) Jurisdiction to order counselling

[19] Mr. Huver relies on Testani v. Haughton, [2016] O.J. No. 4820, 2016 ONSC 5827 (S.C.J.) as authority for the proposition that the court has jurisdiction to order reunification therapy. The father in that case claimed that the mother had engaged in conduct that was alienating the child from him. The mother denied engaging in alienating behaviour. She challenged the court's jurisdiction to order counselling.

[20] The court in Testani, at para. 9, stated that the issue of whether the court had 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. [page746]

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).

[21] The court observed that the absence of a clear statutory basis for the jurisdiction to order counselling was discussed by the Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275, 249 D.L.R. (4th) 260 (C.A.), at para. 14:

It may certainly be desirable for parents to take counselling on how to better parent their child and to hire a counsellor 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 counsellor in the event that they could not agree who should be their counsellor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counsellor outside the court process envisaged under the Divorce Act and without recourse to it.

[22] The court in Testani determined that it had jurisdiction to order reunification therapy, arising from the provisions of ss. 24(2) and 28(1)(b) and (c)(vii) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, but that caution must be exercised when considering the circumstances in which such an order would be appropriate.

[23] In my view, even if ss. 24(2) and 28(1)(b) and (c)(vii) of the Children's Law Reform Act can, by inference, confer jurisdiction to order parents to attend counselling (about which I express no opinion here), Mr. Huver has not satisfied me that his request to compel counselling can be granted in the face of the statement by the Court of Appeal in Kaplanis that counselling requires the co-operation of the parents. In the instant case, Ms. Barrett rejects the proposal for family therapy intervention. As in Kaplanis, there is also no agreed process for the appointment of a counsellor nor any evidence that the parties are willing to submit their disputes to be decided by a counsellor. In my view, in light of Kaplanis, I should not grant an order compelling the parties and the children to attend counselling in the form of family intervention therapy or family reunification therapy.

(c) Consent -- Families Moving Forward materials

[24] A letter from Families Moving Forward, dated October 25, 2017, addressed to "Ms. Hoover" (sic) and counsel, states that both parents must consent to the intervention: [page747]

Please note, consideration will only be given to the multi-day family intervention when both parties have consented and confirmed this intervention is, in principle, feasible for them, noting the consecutive number of days required and the associated costs. (Please see Fee Schedule attached.)

[25] Both parties must complete a "parent referral application form" including questions that are described as "very personal". The parties are required to complete an "informed consent for clinical intake consultation". The parties are also required to complete a "multi-day family therapy intervention agreement", in which they must agree that they and their children shall participate as per the directions of the therapists and "agree to fully cooperate, support and whole-heartedly participate in the family therapy intervention".

[26] The consent provisions are consistent with the observation in Kaplanis that any order for counselling requires the co-operation of the parents and an agreement on the counselling process.

[27] Such co-operation and agreement do not exist in this case. Ms. Barrett is not willing to sign the forms required for the proposed intervention therapy.

(d) Consent -- The Health Care Consent Act

[28] The issue of whether parents and their children can be compelled to attend the Families Moving Forward program was before the court in T. (E.) v. D. (L.), [2017] O.J. No. 4222, 2017 ONSC 4870 (S.C.J.). The motion judge held that although there was nothing in the Children's Law Reform Act that expressly provides the court with the authority to make such an order, the court had parens patriae jurisdiction to make the order sought. This finding stands in distinction to Testani, where the court held that there was no need to rely on the court's inherent jurisdiction to order reunification therapy because, by inference, jurisdiction could be found in ss. 24(2) and 28(1)(b) and (c)(vii) of the Children's Law Reform Act.

[29] Kaplanis is not mentioned in T. (E.) v. D. (L.).

[30] In T. (E.) v. D. (L.), the father, who opposed the order compelling attendance of the parents and children at the Families Moving Forward program, submitted that the program was "treatment" which required the consent of the participants under s. 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. The motion judge held that he was not satisfied that the Families Moving Forward program constituted "treatment" within the meaning of s. 2 of the Health Care Consent Act, 1996, given the Act's focus on treatments that have a "health related purpose". Further, he found that because the Families Moving Forward program was designed to ameliorate the family relationship, it posed [page748] little risk of harm to the parties or the children and would, in any event, be excluded from the definition of treatment.

[31] Respectfully, on the facts of the case before me, I find that the Health Care Consent Act, 1996 requires the consent of Ms. Barrett and, presumptively, of the children, to participate in family reunification therapy.

[32] Section 2(1) of the Health Care Consent Act, 1996 defines "treatment" as [follows]:

"Treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include,

(a) the assessment for the purpose of this Act of a person's capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person's capacity to manage property or a person's capacity for personal care, or the assessment of a person's capacity for any other purpose,

(b) the assessment or examination of a person to determine the general nature of the person's condition,

(c) the taking of a person's health history,

(d) the communication of an assessment or diagnosis,

(e) the admission of a person to a hospital or other facility,

(f) a personal assistance service,

(g) a treatment that in the circumstances poses little or no risk of harm to the person,

(h) anything prescribed by the regulations as not constituting treatment.

[33] The right to consent or refuse consent to treatment is found in ss. 4 and 10(1) of the Health Care Consent Act, 1996:

Capacity

4(1) A person is capable with respect to a treatment, admission to or confining in a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to or confining in a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the [page749] other person is incapable with respect to the treatment, the admission, the confining or the personal assistance service, as the case may be.

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.

[34] Perkins J. notes in L. (N.) v. M. (R.R.), [2016] O.J. No. 601, 2016 ONSC 809 (S.C.J.), at para. 113, that perhaps the broadest degree of personal autonomy accorded to minors is the right under the Health Care Consent Act, 1996 to consent to or refuse treatment as defined in the Act.

[35] The Families Moving Forward materials, filed on the motion before me, describe Dr. Fidler as a member of the College of Psychologists of Ontario.

[36] Section 2(1) of the Health Care Consent Act defines "health practitioner" [as follows]:

"health practitioner" means a member of a College under the Regulated Health Professions Act, 1991 or a member of a category of persons prescribed by the regulations as health practitioners.

[37] Section 1 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides:

"member" means a member of a College;

"College" means a College of a health profession or group of health professions established or continued under a health profession Act;

"health profession Act" means an Act named in Schedule 1.

Schedule 1 lists the Psychology Act, 1991 as a "health profession Act".

[38] The College of Psychologists is therefore a college under the Regulated Health Professions Act. As a member of the College of Psychologists, Dr. Fidler would be a "health practitioner" within the meaning of the Health Care Consent Act, 1996.

[39] With respect to the question of whether the Families Moving Forward program is "treatment", the materials from the program filed by Mr. Huver refer to "family therapy", and "individual child or parent therapy". The materials note that "the health services of a Registered Social Worker or Psychologist are [page750] HST exempt". The focus of the program is on family, parent and child "therapy". I fail to see how this would not fall within the definition of "treatment" in section 2(1) of the Health Care Consent Act, 1996 as ". . . anything that is done for a therapeutic . . . or other health-related purpose".

[40] Mr. Huver asks me to order that Ms. Barrett and the children be compelled, over Ms. Barrett's objection, to undergo intensive family reunification therapy because Ms. Barrett has alienated the children. As noted in Williamson v. Williamson, supra, alienation is a serious allegation. A finding of alienation can have serious consequences for those involved. In my view, proposed responses and therapy to treat alienation could have a serious impact on the children. In the context of the comments of Harper J. in F. (A.) v. W. (J.), supra, I am not prepared to conclude that such treatment poses little or no risk of harm to the children.

[41] Even if the materials from the Families Moving Forward program did not themselves require Ms. Barrett's consent, I find that her consent would be required under the Health Care Consent Act, 1996.

[42] I also find that, in the circumstances of this case, where Cohen is about to turn 15 and Ryah is 12 years of age, there would be a presumption under the Health Care Consent Act, 1996 that they, too, would be required to consent to therapeutic treatment. At para. 115 of L. (N.) v. M. (R.R.), Perkins J. observes:

It is interesting to note that the Health Care Consent Act, 1996 does not prescribe any minimum age at which a minor's consent or refusal to consent is to be acted on. Section 4(2) presumes capacity, regardless of age, and section 4(1) articulates a flexible list of capacity that looks for understanding of information and appreciation of foreseeable consequences.

[43] In view of Mr. Huver's allegations that the children have been turned against him, and that Cohen will not see him or communicate with him, it is reasonable to conclude that the children likely would not consent to participation in the program. There is no evidence from Mr. Huver that would suggest otherwise.

(e) Costs of the proposed intervention

[44] The materials from Families Moving Forward include the estimated costs of a multi-day family intervention. The estimated costs for "Phase I: Referral, Clinical Intake Consultations and Pre-Intervention" range from $2,700 to $6,800. The estimated costs for "Phase II: FMF Multi-Day Intervention (3 days at vacation location in Ontario)" range from $17,050 to $28,050. The estimated costs for "hotel accommodations" for two parents, two children and three therapists, inclusive of clinician meals, is [page751] $4,725. The total estimated costs for Phase I, Phase II and hotel accommodations range between $24,475 and $39,575.

[45] Mr. Huver proposes that the parties share the costs equally. Ms. Barrett states that she is unable to afford the program.

[46] Even if I did not have the concerns which I have expressed about requiring Ms. Barrett and the children to attend the intervention, without their consent, I would require compelling evidence as to the likely success of the proposed intervention therapy, as well as the financial ability of Ms. Barrett to afford the costs of the program, before I would contemplate making an order that would require her to pay $12,000 to $20,000. There is no expert evidence before me as to the cause of the fractured relationship or whether or how it could be meaningfully addressed. All that I have is generic informational material from the program. There is no evidence that Ms. Barrett could afford the estimated costs.

Summary

[47] To summarize:

(a) Mr. Huver has not established that the cause of the breakdown in his relationship with the children has been a result of alienation by Ms. Barrett.

(b) The Court of Appeal in Kaplanis held that carrying out an order for counselling requires the co-operation of the parents and, where the parents cannot agree on counselling, it is an error to order that they must nevertheless attend counselling and appoint a counsellor to resolve their dispute.

(c) The materials filed by Mr. Huver from the Families Moving Forward program expressly require that the parents must consent to the intervention therapy.

(d) The proposed therapeutic intervention would be "treatment" within the meaning of the Health Care Consent Act, 1996. It would require the consent of Ms. Barrett. It would also, presumptively, require the consent of the children.

(e) The estimated costs of the program are such that evidence of the likely success of the program and of the financial ability of Ms. Barrett, as the objecting party, to pay one half of those costs would be required.

Conclusion

[48] I conclude with the words of J.W. Quinn J. in Bruni v. Bruni (2010), 104 O.R. (3d) 254, [2010] O.J. No. 5148, 2010 ONSC 6568 (S.C.J.), at para. 131. Justice Quinn was asked to order a [page752] schedule of counselling for the parents and children in the high conflict case before him. He denied the request and stated:

The legal system does not have the resources to monitor a schedule of counselling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.

[49] For the reasons given, the motion to compel Ms. Barrett and the children to participate in the Families Moving Forward program is dismissed.

[50] Subsequent to the hearing of the motion, the parties advised in writing that they had come to an agreement on an order that the Children's Lawyer be requested to provide representation for the children. Mr. Huver had asked for the order as alternative relief in his motion.

[51] In view of the parties' consent, the nature of the dispute, and the ages of the children, I made an order on February 15, 2018 requesting the involvement of the Children's Lawyer.

Costs

[52] If the parties are unable to agree on the costs of the motion, Ms. Barrett shall serve and file written submissions, not to exceed five pages, exclusive of her bill of costs, within 30 days. Mr. Huver shall file responding submissions, not to exceed five pages, exclusive of any bill of costs that he may wish to file for comparative purposes, within 20 days of service upon him of Ms. Barrett's submissions.

[53] If Ms. Barrett's submissions are not served and filed within 30 days, the issue of costs shall be deemed to have been resolved.

Motion dismissed.