Superior Court of Justice - Ontario

NEWMARKET COURT FILE NO.: FC-15-49190-00

DATE: 20180618

RE: Tracy Bernadette Rea, Applicant AND: Natale Antonio Rea, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: L. Pawlitza / C. Ashbourne, Counsel for the Applicant J. Moldaver / M. Ordon, Counsel for the Respondent

HEARD: May 28, 2018

Ruling on Motions

[1] There are two motions before the court. The applicant (“the mother”) has asked for an Order to continue an assessment in accordance with section 30 of the Children's Law Reform Act[^1] (the “CLRA”) and for therapeutic counselling of the parties and a son (“JR”) of their marriage: the respondent (“the father”) has asked for an Order appointing a lawyer to represent JR or, in the alternative, an Order for a Voice of the Child Report (“VOCR”) to be prepared. For the reasons following, the mother's motion is granted and the father's motion is dismissed.

Background

[2] The parties were married on July 4, 1992 and separated on May 12, 2015. There are five children, all sons, only the youngest of whom is the subject of the parties’ motions. All of the children currently reside with their father. While there is an outstanding Order that JR be in the primary care of his mother, JR has not seen her since January 10, 2018 and not spoken to her since February 2018.

[3] The primary care Order made on October 22, 2015 was never appealed or varied. There is no motion before the court by the father to change JR's primary care.

[4] The mother started these proceedings on September 17, 2015. To describe this case as high conflict would be a gross understatement. There have been no less than 86 endorsements and Orders made: the Continuing Record totals 54 volumes.

[5] Until recently the issues were parenting and financial. On April 20, 2018 the parties signed a Separation Agreement settling all of their financial issues. Not settled were child-related issues involving JR, including child support.

[6] The mother has catalogued a history of Order non-compliance by the father, alleging that he has little or no respect for the law and will do whatever he feels is best for him. The father contends that the mother's only interest is financial and that his only focus is JR's best interests. He says that he wants a child-focused resolution for JR's parenting.

[7] The following evidence and procedural background events are relevant:

(a) on October 22, 2015 Rogers J. ordered that the mother have primary care of JR and an older brother;

(b) on November 2, 2015 the parties consented to an Order made by Rogers J. appointing Dr. Irwin Butkowsky as an assessor in accordance with section 30 of the CLRA and for the parties to attend Dr. Barbara Jo Fidler to mediate parenting issues. The parties also agreed to an access schedule prepared by the mother for JR and his father;

(c) the father refused to see Dr. Fidler, to complete Dr. Butkowsky’s questionnaire or to pay his retainer. There is unchallenged evidence that the father frequently disregarded JR's access schedule;

(d) after the mother brought a motion to compel the father's compliance with the mediation and assessment Order made by Rogers J., the parties consented to a second Order that was made by McGee J. on August 8, 2015 directing that they attend Dr. Fidler forthwith and that Dr. Fidler be authorized to recommend a therapist for JR. Compliance terms with the assessment were ordered;

(e) on September 23, 2016 McGee J. ordered, among other things, that the father pay to the mother the sum of $250,000 to enable her to relocate from the matrimonial home, the sum of $30,000 for monthly support payable after her departure from the home, and the sale of three properties. A term of the sale was that $8 million of the net sale proceeds were to be paid to, and held in trust by, the Accountant of the Superior Court of Justice;

(f) the father attended only one or two mediation sessions with Dr. Fidler, then refused to return;

(g) the parties met with Dr. Butkowsky in late 2016 to start the assessment. Before meeting JR, Dr. Butkowsky suggested, and the parties agreed, that Dr. Butkowsky would try to open-mediate the parenting issues, temporarily suspending the assessment process;

(h) after a number of mediation sessions, Dr. Butkowsky prepared a Memorandum of Understanding (“MOU”) dated April 13, 2017. That document stated that the parties had resolved all outstanding parenting issues regarding JR “in principle”;

(i) neither party saw the MOU before it was sent to their lawyers. The mother wished some changes to the MOU to be addressed. These mostly involved clarification of terms, communication and enforcement protocols. The father refused to consider the changes suggested by the mother and took the position that the MOU was binding on the parties;

(j) the mother continued to experience difficulties with the father's compliance with JR's access schedule;

(k) in July 2017 the father stopped complying with the spousal support Order. He did not bring a Motion to Change the support Order at that time. The mother did not agree to any suspension of the Order. One further payment was made in September 2017;

(l) in the fall of 2017 the mother went to Ireland for about two months to care for her dying mother. Arrangements were made for JR to live with his father;

(m) in early November 2017 Kaufman J. heard a Refraining motion by the father. It was alleged that the father owed support arrears ranging between $120,000 and $330,000. As it transpired, a large part, but not all, of the arrears had been paid directly to the mother. The Director subsequently withdrew the Notice suspending the father's licence, and the father agreed to pay $7,500 for ongoing spousal support;

(n) also in November 2017 the mother brought a motion to appoint a receiver to oversee the sale of the three properties ordered to be sold by McGee J. in September 2016, 14 months earlier. The mother alleged that the father was not allowing the professionals whom she had retained to re-attend at the properties to complete the work necessary for their formal appraisals, and to prepare a marketing plan for each of the properties;

(o) although there is a reference in the mother's affidavit to a Christmas access Order made by Kaufman J., no such Order could be located in the catalogue of endorsements or Orders provided to me. Suffice it that the mother only saw JR for about three hours on Christmas day even though the parties had agreed that the child would spend roughly equal periods of time with each of his parents;

(p) the mother picked up JR from school on January 8 and 9, 2018 in accordance with the parenting schedule. The father picked up JR from school on January 10, 2018 for his overnight access. The father has refused to return JR to his mother's care since then;

(q) despite her efforts to speak to JR, the mother has not been allowed by the father to speak with him. The father said that he has tried to convince the child to speak with his mother but without success;

(r) in a series of endorsements made in late April and early May 2018 the Senior Family Law of Justice, who had been case managing the proceedings since August 2016 tried to deal with the outstanding parenting issues. The father did not comply with the agreement between counsel to continue with the assessment by Dr. Butkowsky as required. In an Appendix to his endorsement made on May 15, 2018 Czutrin J. emailed counsel on May 11, 2018 the following:

“As of this email being sent on Friday, May 11, 2018 at approximately 4:18 p.m. counsel for the father has not confirmed payment of the retainer (i.e. for Dr. Butkowsky), confirmation of the father's attendance as set out by Dr. Butkowsky or responded to father's willingness and cooperation to take [JR] to the appointments.

I am disappointed of the lack of response and made clear that I was expecting confirmation in my previous advice that the motion scheduled is peremptory[^2] and addressing the parenting issues are not to be delayed.

If there is no confirmation as requested an endorsement will be issued next week”;

(s) the endorsement made on May 15, 2018 detailed the “events that have now unfortunately led to Dr. Butkowsky advising counsel that he has cancelled the upcoming appointments that had been arranged to see both parents and their son… to assist the parties and the court addressing the parenting issues related to [JR].” Czutrin J. expressed a disappointment with the father's conduct,

“I was disappointed that the father would not commit to an in person meeting at Dr. Butkowsky. I am unsure whether he paid his half of the retainer.”

Position of the Parties

[8] It is the mother’s position that the assessment by Dr. Butkowsky should be ordered to continue and that pending Dr. Butkowsky being able to re-commence his assessment in about 12 to 14 weeks, a mental health professional should be engaged to undertake reunification therapy.

[9] Counsel for the father said that his client deferred to the court's decision whether the assessment should proceed and, if that was ordered, then the father had no objection to Dr. Butkowsky as assessor. The father opposed reunification therapy as being premature, and he objected to the mother's choice of therapist.

[10] The father wants the child involved in these proceedings. It is his position that a lawyer be appointed to represent JR and that the court should know the child's views before deciding to order reunification therapy. Alternatively, the father argued that a VOCR should be ordered before making any therapy decision.

[11] The mother proposed Howard Hurwitz as the therapist. He is a clinician with over 38 years of experience in high conflict parenting cases, including reunification therapy and counselling. A copy of his “Family Therapy Intervention Agreement” accompanied the mother's affidavit sworn May 24, 2018. The mother tendered for the court's consideration a draft Order acceptable to Mr. Hurwitz detailing the court's expectations of the parties in terms of their timely compliance with the Order and dealing with Mr. Hurwitz's reporting obligations to the court. The father had an “optics” concern about Mr. Hurwitz. While the father acknowledged Mr. Hurwitz’s expertise, he objected to Mr. Hurwitz because he did not know what the wife's counsel may have told him about the case. If a reunification therapist was to become involved, the father proposed a different professional. This was a person whom he proposed to prepare a VOCR if no lawyer was appointed to represent JR.

Analysis

[12] There is no serious dispute that the assessment of Dr. Butkowsky must proceed. The issue to be decided is whether reconciliation therapy should be ordered before the assessment starts and, if so, whether Mr. Hurwitz should be appointed as therapist or whether a lawyer should be appointed to represent JR or failing that, a VOCR ordered. In my view, JR's interests are best served by ordering reunification therapy to start right away, that therapy to precede and then work in tandem with the assessment process.

[13] In McClintock v. Karam,[^3] the court ordered therapeutic reunification therapy (“TRT”) in circumstances where a section 30 assessment had started after access involving a 13 year old child had stopped. Not unlike the father in this case, Ms. McClintock argued that the child's voice should be heard before determining whether therapeutic involvement was needed.

[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 interest 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.

[14] Woolcombe J. rejected the mother's arguments.

[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…

[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. 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.

[15] Where a parent says that a child does not wish to see the other parent, it is not enough for that parent to leave the decision up to the child. Like Ms. McClintock, the father in this case says that he has tried to ensure access, including an invitation to the mother to come to his home to speak with JR. Like Woolcombe J. in the McClintock case, I need not determine how existent or sufficient have been the father's efforts but given the high degree of conflict in this case and the vile, often derogatory, and certainly abusive language used by the father to the mother, her refusal to accept the father's invitation is reasonable. In Reeves v. Reeves,[^4] Mossip J. observed:

[38] The father’s answer to all allegations with respect to non-compliance with the existing Court orders in not facilitating the mother’s access, is that he is only doing what the children want. In fact, in Ms. Tomkinson’s affidavit sworn October 25, 2000, the father made it clear in paragraph 10 that “he cannot make the boys do anything they don’t want to do”…It is in the father’s interests, according to his own view of the separation and his perceived victimization that the children choose to live with him and reject their mother. Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interest of their children. Children do not always want to go school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place. (Emphasis added)

[16] The father's objections to Mr. Hurwitz are unpersuasive.

[17] First, there is no reason why Mr. Hurwitz, as part of his engagement would not elicit in the course of his interviews with JR the child's views and preferences and take those into consideration in prescribing an appropriate course of therapy for JR and his parents. Nor is there any evidence, and certainly there is no reason to suspect, that Mr. Hurwitz and Dr. Butkowsky would not be able to work together.[^5]

[18] Second, there is an alarming history of Order non-compliance by the father which is amply supported by the Record and which demonstrates a win-at-all-costs attitude. Given this history, it was reasonable for the mother's counsel to obtain from Mr. Hurwitz a framework for the therapy proposed with unambiguous terms to ensure that the therapy proceed as quickly and conflict-free as possible. Many, but not all, of the terms proposed by the mother will be ordered. Sanctions for non-compliance may be needed.

[19] Third, the mother's evidence interweaving the history of this case with the evolution of the parenting dispute was detailed and well supported by the Record. By contrast, the father relied on a more general denial of the mother's veracity and largely glossed over the events which preceded his refusal to return JR to his mother's care in late December 2017/early January 2018. There is no question that the father has involved the children of the marriage in their parents’ affairs.

[20] In my view, the father's objection to Mr. Hurwitz has little to do with any real or perceived disqualifying contact between mother's counsel and Mr. Hurwitz, of which there is no evidence of impropriety. The father's intransigence to any proposal other than his own undermines his credibility and is inconsistent with his professed willingness to support a principled focus on a best interests’ resolution for JR's parenting. Elevating JR to becoming a principal actor in his parents’ dispute by appointing a legal representative is not in this child’s best interests, nor is directing a VOCR to be prepared. The former risks further exposure of the child to conflict while the latter suffers from the intrinsic limitation of parental pressure or manipulation.[^6]

[21] In dismissing the husband's motion I am not unmindful of the recent decision of the Ontario Court of Appeal in Mader v. McCormick[^7] in which the court upheld a motions judge decision to refuse a father's request to appoint private counsel for two children. In particular, the court quoted with approval the observation made by Fleury J. in Reynolds v. Reynolds:[^8]

[3] This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured.

[22] I agree with those observations.

Disposition

[23] Accordingly, an Order shall issue on the following terms:

1. The parties shall attend reunification therapy, together JR born June 21, 2006, with Howard Hurwitz (“Mr. Hurwitz”). The purpose of such therapy shall not be to determine whether it is in the child’s best interest to have contact with his mother but instead, the purpose is to enable JR to have a healthy and meaningful relationship with both of his parents.

2. The mother and father shall sign Mr. Hurwitz’ Family Therapy Intervention Agreement (“FTIA”). Each party shall pay any financial retainer that is required by Mr. Hurwitz within ten (10) days of the date that Mr. Hurwitz sends his FTIA to them. The mother shall pay 10% of Mr. Hurwitz’s financial retainer and the father shall pay the other 90%. Each of the parties shall pay any such further financial retainer that may be requested by Mr. Hurwitz, in the same proportions as above, within two (2) weeks of the request for a further financial retainer having been made by Mr. Hurwitz, whether the request is made in writing or otherwise. For clarity, the father’s share of Mr. Hurwitz’s retainer shall not be paid from the Natale Rea (2013) Trust. Reapportionment, if any, shall be determined by this Court on receipt of the reports from Mr. Hurwitz as set out at paragraphs 5, 8, 9 and 11 below.

3. The sample FTIA appended as part of Exhibit “C” to the mother’s affidavit shall be revised by Mr. Hurwitz and particularized to the parties and JR. It shall include terms not inconsistent with this Order. For example, paragraph 8 of the FTIA dealing with the involvement of other family members shall be amended in accordance with paragraph 9 of this Order as set out below, and paragraph 23 dealing with the duration of the therapy shall be amended in accordance with paragraph 8 of this Order. In the event that the terms of this Order are unclear to Mr. Hurwitz and he requires further direction, he may forward a draft FTIA to me for final approval. The parties shall be copied by Mr. Hurwitz with any such communication to the court: the parties are not to communicate with Mr. Hurwitz or the Court dealing with the FTIA.

4. Both of the mother and the father shall adhere to and abide by all of the conditions that are set out in the FTIA sent to them by Mr. Hurwitz.

5. The therapy process shall be fully open and Mr. Hurwitz shall provide monthly reports to me. In the event that therapy stalls or in the event that any of the terms or directions that are set out in this Order related to the reunification therapy are breached, Mr. Hurwitz shall immediately report the breach or breaches to me. Either of the mother or the father may request a copy of the report that Mr. Hurwitz makes to the Court.

6. In the event that one of the parties fails to pay his or her share of the costs to Mr. Hurwitz or to Dr. Irwin Butkowsky as determined pursuant to this Order, the other party may pay such costs on the defaulting party’s behalf.

7. Mr. Hurwitz may recommend termination with any other previously retained therapist or therapeutic service at his sole discretion. Neither the mother nor the father shall take JR to see any other therapist (which shall include, but not be limited to, any psychologist, counsellor, coach or psychiatrist) and neither the mother nor the father shall allow JR to engage in any other therapeutic service unless directed by Mr. Hurwitz, except for Dr. Butkowsky.

8. The appointment of Mr. Hurwitz shall continue until further Order or until Mr. Hurwitz deems that it is not in James’ best interests to continue with the process. If the latter is the case, Mr. Hurwitz shall immediately report to this Court.

9. All three of the mother, the father and JR shall attend individually and together for sessions with Mr. Hurwitz as Mr. Hurwitz deems necessary on such dates and times as Mr. Hurwitz shall direct. If Mr. Hurwitz determines that other members of the family should become involved in reunification therapy, and if the mother and father cannot agree, then Mr. Hurwitz shall report to me, which report shall set out the reasons why the therapy should include other family members.[^9]

10. Mr. Hurwitz may interview other professionals as he deems necessary, including, but not limited to Dr. Butkowsky, Lisa Seward, Alfred Mamo and/or any relevant persons at the York Region Children’s Aid Society.[^10] To that end, the mother and the father shall sign any releases that may be requested by Mr. Hurwitz within three (3) days of the request being made by him, whether the request is made in writing or otherwise.

11. Mr. Hurwitz shall have the authority to determine and to recommend to the parties a timeline for a parenting schedule for JR and his parents. In the event that the parties are unable to agree to the recommendations made, then Mr. Hurwitz shall report to this Court setting out those recommendations and his reasons for them.

12. The mother and the father shall refrain from scheduling any activities or lessons for JR which would interfere with Mr. Hurwitz’ scheduled times with JR and during the other parent’s parenting time with the child. It is understood that in order to facilitate Mr. Hurwitz’s schedule, JR may have to miss school, camp or other organized activity to attend reunification therapy.

13. Mr. Hurwitz shall determine the transportation arrangements for JR to and from his therapy sessions. Mr. Hurwitz may engage another professional to assist with transportation. When JR is meeting individually with the mother or the father, he shall be dropped off at Mr. Hurwitz’s door. The mother, the father, their designates or the transportation professional, as applicable, shall leave the premises during the time that JR meets with Mr. Hurwitz unless otherwise directed by Mr. Hurwitz.

14. Neither the mother nor the father shall discuss any aspect of the reunification therapy process with JR unless first discussed with and approved by, or directed to do so by, Mr. Hurwitz. Without limiting their generality, such information should be restricted to the purpose of the therapy, the therapeutic process, confidentiality, and the role of Mr. Hurwitz.

15. Mr. Hurwitz shall have the authority to engage additional professionals as he deems necessary to assist in this process and any such professional’s fees shall be paid by Mr. Hurwitz out of the financial retainer that is paid to him in accordance with paragraph 2 of this Order. Mr. Hurwitz may recommend other persons to facilitate and assist in implementing a parenting schedule for JR. This shall include any assistance in transferring JR to reunification therapy or to any other designated place for the child’s parenting time with his mother.

16. Neither the mother, the father nor any other person who participates in the therapeutic reintegration process shall record any aspect of the reunification therapy unless that has been specifically agreed in writing, and in advance, by Mr. Hurwitz.

17. Neither the mother, the father nor any designate on behalf of either of them shall attend at Mr. Hurwitz’s office except for pre-scheduled appointments. Neither the mother, the father nor any of their designates shall approach Mr. Hurwitz at any time in public, telephone Mr. Hurwitz except as may be required.

18. The section 30 assessment with Dr. Butkowsky shall recommence at the earliest possible date. The parties shall each pay the requested retainer to Dr. Butkowsky (10% to be paid by the mother and 90% to be paid by the father), by June 29, 2018. Each party shall complete the questionnaires or such other documents and provide such information as may be required by Dr. Butkowsky within five (5) days of an oral or written request by Dr. Butkowsky. Each party and JR shall attend all meetings with Dr. Butkowsky in person and shall prioritize the scheduling of these appointments over the rest of their schedules. Each party shall be responsible for bringing JR to the scheduled appointments as may be directed by Dr. Butkowsky. Each party shall respond to any request by Dr. Butkowsky’s office to schedule appointments within forty-eight (48) hours of the request having been made by Dr. Butkowsky’s office.

19. Dr. Butkowsky shall report to this Court immediately in the event that either party fails to comply with the timelines or terms of this Order.

[24] Each of the parties should be mindful that court Orders are not suggestions. Non-compliance with the terms of this Order will not be tolerated.

[25] A copy of this Ruling will be sent to Mr. Hurwitz and Dr. Butkowsky by the judicial secretary.

[26] If counsel are unable to settle costs, the mother shall deliver her written submissions by June 29, 2018 and the father shall deliver his submissions by July 11, 2018. Reply (if any) shall be filed by July 16, 2018. Submissions shall be limited to four double-spaced pages: in the case of Reply, two pages. All submissions shall be filed in the Continuing Record. Offers to Settle, Bills of Costs and any Authorities upon which a party may wish to rely shall also be filed by the above deadlines but shall not form part of the Record. Counsel are to advise the judicial secretary at Nurit.suzana@ontario.ca once the submissions have been filed.

Justice D.A. Jarvis

Date: June 18, 2018

[^1]: R.S.O. 1990, c. C.12 [^2]: This reference is to the motions subject to this Ruling. [^3]: [2017] O.J. 5722, 2017 ONSC 6633, 2017 CarswellOnt 17009, 285 A.C.W.S. 343, 1 R.F.L. (8th) 142 [^4]: [2001] O.J. 308, 2001 CarswellOnt 277, 102 A.C.W.S. 1116 [^5]: The circumstances of this case are distinguishable from my decision in Testani v. Haughton, 2016 ONSC 5827 which dealt with circumstances where a reunification Order would be appropriate and which suggested that no such therapy should be ordered when an assessment was underway. The assessment process has not yet started in this case and there is a real risk that the child’s relationship with his mother will be damaged even more by any further estrangement from her. [^6]: Birnbaum and Bala, “Views of the Child Reports: The Ontario Pilot Project”, International Journal of Law, Policy and the Family, 2017, 0, 1-19 [^7]: 2018 ONCA 340, 2018 CarswellOnt 5334 [^8]: 1996 7273 (ON SC), [1996] O.J. 2230 (Ont. Gen. Div.) [^9]: This term should not be interpreted as directing the involvement of other family members but purposed to give the Court context. [^10]: All of whom have been previously involved in this case.