Court File and Parties

COURT FILE NO.: FC-17-1241 DATE: 20181010 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VISITA LEELARATNA Applicant – and – MEGHA LEELARATNA Respondent

Counsel: Gil D. Rumstein, for the Applicant Rodney B. Cross, for the Respondent

HEARD: September 21, 2018

REASONS FOR DECISION

Audet J.

[1] This motion is the continuation of a series of motion hearings which began in December 2017. The first issue to be decided is what access, if any, the father should have with his 12 year old son, Udara, on a temporary basis. The second issue to be decided is whether this court has jurisdiction to make a therapeutic order compelling the parties and/or Udara to engage in various types of counselling, as recommended by Dr. Weinberger after the completion of a comprehensive s. 30 assessment, and whether such counselling falls within the ambit of the Health Care Consent Act such that consent of the parties and\or Udara is required.

[2] For the reasons that follow, I have concluded that the court has jurisdiction to make a therapeutic order in a family law context, that the particular therapeutic orders sought in this case do not fall within the definition of “treatment” under the Health Care Consent Act, and therefore, that the parties’ and the child’s consents are not required for the order to be made. Finally, I have decided that it is in Udara’s best interest that both he and his parents engage in various forms of counselling before access between him and his father resumes.

Background Facts

[3] The parties were married on February 2, 1988 in London. They have one child, Udara, born on June 22, 2006. On May 14, 2017, the father left the country for a two week trip to Sri Lanka to deal with some urgent matters that required his personal attention. When he returned to Canada on May 31, 2017, the mother and the child had moved out of the matrimonial home. The next day, the father received a lawyer’s letter notifying him that his wife had separated from him. The father did not see his son for three days, but he immediately retained counsel and two visits were quickly arranged between them at Udara’s school.

[4] After these two visits, the father was quickly advised through counsel that Udara did not wish to have visits with him and that he was anxious and upset with the idea of spending time with his father. Udara was almost 11 years old at the time. As the father was unable to get the parenting time that he wished to have with Udara, he immediately filed an application before the court seeking a shared parenting arrangement and other relief. Leave to bring a motion on an emergency basis to deal with parenting was granted by Shelston J. on June 29, 2017. Father and son continued to have limited and brief visits until the parenting motion was heard. Udara continued to show strong resistance to having visits with his father.

The July 25, 2017 Order

[5] The parenting motion, which was returnable before me on July 25, 2017, was adjourned on consent of the parties, without prejudice, based on Minutes of Settlement which provided the father with access to Udara twice per week, for half an hour each, to occur in the presence of a third party agreed upon by the parties. Longer visits were to be accommodated if Udara expressed the wish to extend his visit with his father. The parties further agreed to retain Ms. Rekha Chagarlamudi to provide counselling to the family in order to try and achieve the following goals:

1. easing the child’s fears and anxieties when exercising access with his father;
2. increasing the amount and quality of parenting time between the child and his father;
3. providing the parties with strategies to better co-parent and to communicate with one another constructively to that end;
4. working towards the elimination of any form of supervision.

[6] Despite this order, access visits did not proceed according to plan. This was mainly due to the parties’ inability to find a supervisor suitable to the mother, and who could commit to access visits on a regular basis. In addition, the Children’s Aid Society got involved as a result of various events which need not be related here, but which led to their becoming engaged with the family without a protection application being filed.

The December 21, 2017 Order

[7] On December 21, 2017, after a full motion hearing before me, and on consent of the parties, I lifted the need for supervision of the access between Udara and his father. The frequency and length of the visits as well as the conditions around the father’s exercise of access with Udara were disputed. I found, based on the evidence before me, that it was undisputable that Udara experienced significant stress and anxiety around his visits with his father. However, the cause of that fear and anxiety was quite unclear. The mother blamed that fear on the father’s own behavior and actions, whereas the father was of the view that the mother was the cause of that fear as a result of her alienating behaviours and lack of support for the father-son relationship. The contradictory and untested evidence did not allow me to come to any clear conclusions in that regard.

[8] What was clear, however, was Udara’s significant level of stress and anxiety in relation to his visits with his father and his strong resistance to attending those visits. I was of the view that imposing upon him more access with his father would likely lead to a further deterioration of their relationship. For that reason, and while I allowed visits to continue unsupervised, I ordered that those visits were to be exercised in the community twice a week, for two hours every Tuesday after school and for three hours every Saturday. The visits were to occur at a location enjoyable to Udara (such as Fun Haven) and if Udara at any moment expressed his clear wish to end the visit, the father was to return him to his mother.

[9] I remained seized of this matter and ordered the parties to secure a date during the week of January 29, 2018, for the continuation of the motion to review whether access should be increased or its conditions changed. In particular, I wanted to find out how Udara would fare out with the slightly increased and unsupervised access. I directed the parties to find out from Ms. Chagarlamudi whether she might be prepared to provide me with a very brief letter confirming whether, in her view, the changes in access had caused Udara increased anxiety or not. Finally, and on consent of the parties, Dr. Weinberger was to be retained to perform a full assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Dr. Weinberger is a registered psychologist with years of experience in performing parenting assessments.

[10] Unfortunately, Udara’s distress and anxiety continued to intensify. As of December 30, 2017, access had been discontinued by the mother as a result of Udara’s family doctor’s recommendation that it be suspended and the mother’s understanding of what had transpired during the three access visits between Udara and his father over the Christmas holidays. In an affidavit sworn January 16, 2018, Dr. Rabie reported that he had done several counselling sessions with Udara and his parents, but that Udara’s anxiety continued to get worse and he had complained of physical symptoms such as vomiting and irritable bowel syndrome. He recommended that Udara see a psychologist to assist with his anxiety, and that visits between him and his father cease until the severity of Udara’s symptoms subside.

The January 31, 2018 Order

[11] The motion returned before me on January 31, 2018. At that time, I expressed significant concerns about the evidence of Dr. Rabie. In particular, I found that her affidavit gave very little context to her recommendation that access be suspended, and she appeared to be advocating the mother’s position rather than providing an objective professional opinion. I was also not persuaded by the mother’s evidence of the “significant distress and anxiety” Udara’s three access visits with his father had caused him, given that the only difference between the (very limited) access before and after my December 21, 2017 order was that it was now unsupervised.

[12] Further, I was very distraught by the fact that Udara had not yet been seen by Ms. Chagarlamudi, which was the responsibility of the mother to arrange. Finally, I was of the view that the court needed the insight of Dr. Weinberger’s assessment to be in a position to determine what access, if any, was in Udara’s best interests, and this assessment would not be possible unless there was meaningful contact between Udara and his father.

[13] As a result, I ordered counselling with Ms. Chagarlamudi to be arranged on an emergency basis and unsupervised access between Udara and his father was to resume immediately after the first session. I also changed the access schedule so that Udara would never go directly from his mother’s care to his father’s care for visits (which I felt might have resulted in increased stress and anxiety for Udara given the conflict between his parents). The access was therefore changed to Tuesdays and Fridays, for two hours each day. Udara was to be picked up by his father directly at school until a spot could be secured at a supervised exchange facility. The mother was to pick up Udara from his father’s home and specific orders were made to ensure that there would be no contact between the parents during exchanges. The parties were to strictly adhere to the court ordered access schedule.

The August 3rd, 2018 Motion

[14] On July 24, 2018, another motion was brought before me by the father. While it was his evidence that his visits with Udara had been going very well since my January 31, 2018 order, and that Udara had not exhibited any of the strange behaviours he had exhibited prior to that order, disagreements between the parties as to the pickup and drop off location since school was over had led to Udara having missed most of his access visits with his father since the end of June. In addition, the social worker from the Children’s Aid Society who continued to be involved with the family was not supportive of continued contact between Udara and his father.

[15] As if this was not enough, Ms. Chagarlamudi had terminated her services to the family on March 2, 2018. In a letter dated May 14, 2018, she expressed escalating concerns related to in-session and between-session events, and that by March 2, 2018, she no longer believed it was in Udara’s best interests to continue counselling due to the damaged therapeutic relationship between her and Udara, and the mother’s continued lack of insight and commitment to the therapeutic process. Whereas therapy was intended to provide Udara with a safe positive space, she was of the view that it was now serving as a source of conflict and stress for him.

[16] As a result of Ms. Chagarlamudi’s termination of her services to the family, each parent had felt entitled to bring Udara to their own, unilaterally chosen counsellor, resulting in Udara having counselling sessions with Ms. Maureen Sullivan while in the care of his mother, and with Ms. Monica Meyer while in the care of his father.

[17] At the time the father filed his motion materials, Dr. Weinberger had not yet completed his assessment. However, two days before the motion was to be heard, he felt compelled to produce an interim and abbreviated report to provide the court with some insight into the situation until he was able to complete his more comprehensive assessment report.

[18] Of particular note in that abbreviated report was Dr. Weinberger’s observations during a visit between Udara and his father which occurred on May 15, 2018. During that visit, Udara’s tone in response to his father’s attempt to engage him in conversation was cross and irritated, and he refused to engage in any way with his father. When the father tried to disengage him from his iPad or to interest him in another activity, Udara would react aggressively, yelling at him to stop staring, to be quiet, to leave him alone and to shut up “for once.” The father’s response to his son’s dismissive and rude behaviour, according to Dr. Weinberger, was inappropriate which prompted Udara to respond even more derisively, telling his father to “stop laughing like that, that it was infuriating.” In his interim report, Dr. Weinberger stated that a striking aspect of his observations was the stress the child was experiencing and the blatant stance he took vis-a-vis his father who he clearly stated he did not want to be with.

[19] As a complete contrast to this behaviour while with his father, Udara, at his mother’s home, was observed to be calm, polite, and easily engaged by his mother. Dr. Weinberger observed an obvious pattern of communication, collaboration, and mutual ease and comfort throughout the session. Udara showed no disrespect or attitude whatsoever toward his mother and participated positively with her at all times.

[20] In light of Dr. Weinberger’s observations during those visits, which I found alarming, I decided to temporarily suspend the father’s access with Udara until his comprehensive report could be produced, and I adjourned the motion to allow for that process to be completed. The motion was postponed twice for various reasons including to allow the parties to cross-examine Dr. Weinberger on his final report produced on August 20, 2018.

[21] By the time this motion was finally argued before me on September 21, 2018, there had been no access between Udara and his father since on or about July 3, 2018.

Dr. Weinberger’s Assessment Report

[22] In addition to his individual meetings with the parents and his communications with various collaterals, Dr. Weinberger saw Udara alone on two occasions. He complained to Dr. Weinberger that his father force fed him during visits and that this stopped only recently; that he forced food through his teeth or forced it up with his fingertips and forced it into him, and; that he put strawberry milk up against his mouth and tried to force him to drink it. He reported that once during a visit at his father’s residence, he went into the washroom and locked himself in but that his father tried to pick the lock to gain entry anyway, as he did not want to leave him alone. He expressed being happier when the visits were supervised because there was someone to intervene to make his father stop talking about things he was not interested in, something that was not available to him when the visits were unsupervised. He complained of being hit by his father with a belt up until age 8 or 9, and that sometimes his father hung him by his feet and threatened to drop him headfirst on the kitchen tiles when he was 10 years old.

[23] Udara further stated that at a recent Vesak celebration (a holiday traditionally observed by Buddhists), which he said his father “forces him” to attend, and during which his father “forces him” to make a speech in front of the crowd, he told the audience that he hated his father and would rather die than to be with him. He reported being afraid that his father would poison him after he made such a hateful public speech, and that if he was ever going to put him on stage again, he would expose him for “what he was doing to him.” Udara went on to complain about his father ranting all the time, which is why he would never sit in the front seat of the car with him, hoping to get away from his father’s incessant talking, and that there was absolutely nothing enjoyable to be had with his father. He expressed that his father never listened to him no matter how many times he told him his views, and forced him to do things that he had made clear he did not want to do (such as playing golf, fishing, or going to a particular school).

[24] Udara’s account of his relationship with his mother was completely the opposite. He expressed being heard and listened to by her, and that his mother would ask him if he would like to do something and then go with his expressed wish instead of pressuring him to do things, as did his father. He reported enjoying activities with his mother such as baking and making Jell-O, or going on play dates or doing his homework. Whereas there were some concerns that Udara had suffered from suicidal ideations in the past, he expressed to Dr. Weinberger that he no longer felt like hurting himself and that when he did, it was related to “seriously” hating the visits with his father. He further stated that “I love what happens except for the visits, but the visits don’t happen a lot of the time so I’m more happy than I am sad.”

[25] Despite Udara’s completely positive report of his relationship with his mother, Dr. Weinberger was of the view that the information obtained through his interviews with the mother and from others showed a significant influence on her part, which might have contributed to the problem to a certain extent. For instance, Ms. Sandi Pyatt, the Child Services Worker from the Children’s Aid Society who was involved with this family, reported that she had found it necessary to speak very directly to the mother about not engaging in conduct that would influence Udara against his father regardless of the issues between the parents. She noted that despite the mother’s milder manner, her actions had, at times, been clearly unhelpful.

[26] Ms. Chagarlamudi, who was initially chosen by the parties to provide counselling to Udara, also reported that she was concerned about inappropriate sharing of information with Udara by the mother, and that she had raised it with her without apparent success or compliance on her part. As a result of Udara’s expressed belief that her role was to separate him from his mother and promote greater access with his father, Ms. Chagarlamudi felt it necessary to end her involvement.

[27] With respect to the father, and while no conduct had been identified justifying a protection application, Ms. Pyatt confirmed that she had to advise him to avoid methods of physical discipline and that he could be more sensitive to Udara’s expressed level of comfort or discomfort from an age-appropriate approach. She also reported that emails and calls to her from the father had been so excessive that it had been of concern to her. This was also reported by Udara’s school principal who said that the father was relentless and frustrating with his questions and his persistent pressuring. She stated that the father shared personal emails about the family conflict with her and that she had to ask him to stop doing that and set clear guidelines for him. She explained that, although she had told the father that Udara did not want him to attend on school trips, and despite the father’s agreement that he would respect Udara’s wishes in that regard, he had gone ahead and signed up to go on a trip anyway. She expressed that the father was exhausting and frustrating for everyone at the school.

[28] In light of the above, Dr. Weinberger concluded that the significant stress that Udara was experiencing, and the blatant stand he took with regards to his father, was extraordinary. He concluded: “That there is something terribly amiss here seems patently evident and reinforces the many other examples of how distressed and conflicted the relationship has become between Udara and his father.” He pointed to Udara being under significant stress and that the potential repercussions on his mental health over the long term, should conflict persist, could not be understated.

[29] With regards to the father, Dr. Weinberger concluded that he rambled, that his thinking was often not well organized and that he could get over-animated. The father had a way of persisting, and to excess. Dr. Weinberger was of the view that Udara’s forceful complaints of feeling harassed by his father should not all be dismissed given his father’s behaviour style. He felt troubled by the father trying to convince Udara to tell Dr. Weinberger that all was well at the visits, something Udara flatly denied. He felt that the father’s intensity in his approach might interfere with his ability to listen or to take direction when it came to his son and family. He also questioned whether the father was able to interpret well, given his comments to the effect that Udara and he were close, that access had gone well and that he had good communication with Udara’s school, all of which were clearly untrue. The father’s belief that his problems with Udara were solely the result of the mother’s influence, and not at all of his own actions, was problematic.

[30] With regards to the mother, Dr. Weinberger expressed clear concerns about the negative influence she had on Udara with regards to his relationship with his father. Her explanations with regards to the father’s motivating intention about attending events to which he was not invited (“he just wants to stir Udara up”) showed not only her negative view of the father, but also her questionable thinking. Dr. Weinberger was of the view that, given the very close and purposeful mother-child relationship, it was difficult to see how the mother’s own strongly held views about the father (she compared him to a pedophile at one point) would be fully shielded from the child. Rather than challenging Udara to consider an alternate view or other ways to behave with his father, he felt the mother might advertently or inadvertently be abetting the conflict.

[31] Despite the above, Dr. Weinberger concluded that, to whatever degree they each contributed to the problem, both parents nevertheless loved Udara genuinely and deeply and were immensely proud of his academic success. Since Udara was their one and only child upon which to shower their attention, both could contribute immeasurably to his life and well-being, so long as “things could be put on a healthier footing.” Despite this, Dr. Weinberger expressed that the current regime was both unworkable and untenable; Udara refused to go with his father. Access, at this time, was stressful for him and presented emotional and physical concerns.

[32] In Dr. Weinberger’s opinion, both parents had so much to criticize about the other that it became difficult to see an end. He felt that given the significant level of difficulty in this family, it was very important that there be assistance from the court to not only keep the parties separate from each other, but to also make professional help, once again, a priority requirement for everyone and particularly for Udara. Dr. Weinberger made the following recommendation with regards to therapeutic intervention for this family:

• For the father, completing a structured anxiety management program to help reduce his, at times, exceptional anxiousness and fears of losing his child and how upset he can get with the mother; therapy aimed at helping him continue to develop self-awareness and insight into how he contributes to the problem and to provide him with problem-solving skills to better relate to Udara and to cooperate with the mother;
• For the mother, therapy aimed at helping her continue to develop self-awareness and insight into how she contributes to the problem including how she influences Udara against his father, intentionally or otherwise; and to help her build her co-parenting skills;
• For Udara, private counselling sessions aimed at providing him with a private forum to learn how to better deal with his issues with his father and how to manage the stress he is under. If the parties cannot agree, the court should appoint that counsellor. There should be strict boundaries for the parents to comply with as far as Udara’s counsellor and counselling sessions are concerned;
• For Udara and his father, joint counselling sessions to try to rebuild a functional and healthy relationship.

[33] The following conclusions of Dr. Weinberger are also worthy of note:

The reconstructive work cannot be in a vacuum if there is to be hope of success. The foundation for it will need to be built via each of the individual counselling efforts above-noted. There needs to be at least some measure of progress at the father’s end, the mothers’ end, and at Udara’s end, for the reconstructive process to have something to work with to give it practical support.

There is no quick fix that I can see to this situation given the strength of emotions and the imbededness of some of the challenges. For the needed changes to occur one can foresee that intervention will need to be comprehensive, integrated, and over the long-term.

There is so much conflict here that regardless of the multi-faceted counselling it is difficult to see how progress will be made without the continuing oversight of the court and the setting of requirements for each parent that they are to participate and demonstrate progress subject to further action by the court.

[34] With regards to access between Udara and his father, Dr. Weinberger was of the view that access should be supervised, on the short-term, if it was to happen at all. He suggested that supervised access was to occur in a formally recognized site with an established structure, rules and trained staff who could impartially monitor, observe, and document and no less importantly, intervene, should there be risk to the child’s safety, emotional or physical.

Position of the Parties

[35] The father takes the position that the mother is alienating Udara. While he acknowledges that he has some work to do on his own, which he is fully prepared to do, he seeks an order for the immediate re-instatement of his access with Udara. He takes the position that this court has jurisdiction to make the therapeutic orders recommended by Dr. Weinberger, including immediate reunification therapy, and asks that all parties be compelled to engage in the therapeutic process recommended by him. To the extent that the therapeutic orders are made, the father is prepared to agree with temporary supervised access for a limited period of time to facilitate Udara’s reintegration into his life. Should the court decline making the therapeutic orders sought, he seeks the immediate reinstatement of his unsupervised access with Udara, twice per week.

[36] The mother denies that she has engaged in alienating behaviours, and takes the position that the broken relationship between Udara and his father is the result of years of abuse by the father towards Udara, which Udara has finally had enough of. She takes the position that access between Udara and his father is detrimental to his well-being, but would support some supervised access between them so long as she is not required to physically force him to attend. The mother is opposed to any order being made forcing Udara or herself to engage in counselling. She takes the position that the court does not have the jurisdiction to do so, and that, in any event, she does not have the means to pay for same. She adds that Udara has just started in a new school, that he should be allowed some respite time to get settled, and that he should be the one to decide if, when and with whom he wishes to access any additional counselling.

Analysis

[37] Before going into the legal analysis which supports the conclusions I have reached with regards to the two main issues in this motion, I wish to make the following important points.

[38] It is crystal clear to me, based on the evidence before me, that without an integrated professional therapeutic intervention with this family, any hope to rebuild a positive relationship between Udara and his father will be lost forever. There is simply no legal solution for this family, unless it is grounded upon, and supported by, therapeutic assistance. If this court does not have the ability to impose on the parties and their child the therapeutic order that is necessary to achieve the long-term changes in behaviours which are essential to rebuild Udara’s relationship with his father, this court will have no power to assist this family or this child. This conclusion is rooted in my finding that, without a sustainable change in behaviour, access between Udara and his father, in its current form, is detrimental to his mental health and overall well-being, and not in his best interests.

[39] However, and despite my conclusion that it is not in Udara’s best interests to continue to have access to his father at this time and in the present circumstances, I agree with Dr. Weinberger’s opinion that Mr. Leelaratna has much to offer to his only son, and that there is benefit to Udara having a relationship with his father, provided that it can be set on a much more positive footing. In other words, there is still hope that Udara’s relationship with his father can be repaired, if everybody meaningfully engages in the therapeutic work necessary to achieve that goal.

1- Does this court have jurisdiction to make a therapeutic order?

[40] There is significant controversy at this time in Ontario about whether or not courts have jurisdiction to make therapeutic orders compelling parents and children to participate in counselling or therapy, including reunification therapy (“therapeutic orders”). The caselaw appears to be divided into three distinct groups: cases where the court has found that it did not have jurisdiction; cases where the court found that it had jurisdiction, and; cases where the court has assumed jurisdiction (whether or not it made the order), without explanation.

[41] In cases where the court has concluded that it did not have jurisdiction to make therapeutic orders (a minority of cases), the judges have generally relied on Kaplanis v. Kaplanis (2005), 194 O.A.C. 106, as authority for this conclusion (see Scott v. Lloyd, 2014 ONCJ 639; Zaidi v. Qizilbash, 2014 ONSC 201; Imineo v. Price, 2011 ONCJ 584, 14 R.F.L. (7th) 193; Barrett v. Huver, 2018 ONSC 2322, 9 R.F.L. (8th) 244). In Barrett v. Huver, the court declined making an order compelling the parties to attend reunification therapy (the multi-day family intervention “Families Moving Forward”) on the basis of Kaplanis, but also on the basis that such reunification therapy was a “treatment” as defined in section 10 of the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A (the “HCCA”), which required the consent of all parties and, presumably, of the child.

[42] Judges who have found to have jurisdiction to make therapeutic orders have generally relied on sections 24(2), 28(1)(b) and 28(1)(c) of the CLRA (See Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226; Silver v. Silver, 2017 ONSC 5177; McClintock v. Karam, 2017 ONSC 6633, 1 R.F.L. (8th) 142; E.H. v. O.K., 2018 ONCJ 412; Berhanu v. Awanis, 2018 ONCJ 505) or on its inherent parens patriae jurisdiction (Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C.) and E.T. v. L.D., 2017 ONSC 4870, 98 R.F.L. (7th) 324).

[43] In L. (J.K.) v. S. (N.C.) (2008), 54 R.F.L. (6th) 74 (Ont. S.C.), the court found that it had jurisdiction to order reunification therapy based on s. 16 and 17 of the Divorce Act, R.C.S. 1985, c. 3 (“DA”) (although in the end the court left it open to the mother’s discretion to decide whether or not she would engage in the proposed intensive therapeutic intervention for alienated children). In Marquez v. Zapiola, 2013 BCCA 433, 36 R.F.L. (7th) 22, the British-Columbia Court of Appeal also found jurisdiction to exist. It stated that there was “clear authority” pursuant to section 16(6) of the DA to make an order that the children and respondent attend for a single meeting with an independent counsellor to discuss their ongoing relationship, as an incident of custody.

[44] There is also a panoply of cases where courts have assumed jurisdiction to make therapeutic orders, whether or not they ultimately made the order, without a discussion about their jurisdiction to do so (N.H. v. J.H., 2017 ONSC 4867; S.D.M. v. P.M., 2018 ONSC 254; Rea v. Rea, 2018 ONSC 3723; C. (W.) v. E. (C.), 2010 ONSC 3575, 93 R.F.L. (6th) 279; Spencer v. Beier, 2015 ONSC 7611; Karwal v. Karwal, 2015 ONSC 2025, 58 R.F.L. (7th) 418; Hazelton v. Forchuk, 2017 ONSC 2282, 93 R.F.L. (7th) 254; Leggatt v. Leggatt, 2015 ONSC 4502; Sine v. Bannister, 2016 ONSC 7750; Valettas v. Chrissanthakopoulos, 2013 ONSC 4936; Luo v. Le, 2016 ONSC 202; and L.G. v. T.P., 2018 ONSC 3982, to only name a few). In some of those cases, the parties had agreed that the court had jurisdiction to make such orders, and in others, one parent was objecting to the therapeutic order.

[45] I am of the view that the court has jurisdiction to make a therapeutic order pursuant to section 28(1)(b) and (c) of the CLRA, as well as pursuant to section 16(1) and (6) of the DA, which read as follows:

Children’s Law Reform Act

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(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,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(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.

Divorce Act

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

[46] Pursuant to section 24 of the CLRA and section 16(8) of the DA, such orders are to be made on the basis of the best interests of the child.

[47] With the greatest of respect, I do not agree that Kaplanis v. Kaplanis, stands for the principle that therapeutic orders should not be made without the parties’ consent. In Kaplanis, and while the court acknowledged that the legislation did not specifically authorize the making of a therapeutic order, it recognized that some trial judges had found inherent jurisdiction to do so without stating whether or not it agreed with their conclusion. In that case, the Ontario Court of Appeal found that the trial judge had erred in ordering the parties to attend counselling, not on the basis of lack of jurisdiction, but based on the absence of evidence that would support a finding that the parties would be able to carry out the order (no evidence that the parents would cooperate in the process, no stated process for the appointment of a counselor in case of disagreement, etc.).

[48] Although the issue of jurisdiction was not specifically discussed by the Ontario Court of Appeal in Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5, it is important to note that the court found no error in the trial judge’s decision to limit the alienating mother's access to weekly therapy sessions with a psychologist in a severe alienation case.

[49] There is a wide variety of orders that courts routinely make in the context of adjudicating on custody and access matters, the nature of which is not specifically set out in the CLRA or the DA. For instance, orders requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; whether a child will be allowed to travel to a specific country; or whether a child will be raised in a particular faith or educated in a particular language. The courts have always relied on the wide powers granted to them pursuant to sections 28 of the CLRA and 16 of the DA, and rightly so in my view, as authority for them to craft the order (including multi-directional orders) that meets the best interest of a particular child when parents cannot agree.

[50] Rule 31(5) of the Family Law Rules also gives the court the power to make a therapeutic order if appropriate in the context of a contempt motion to force a non-compliant and/or alienating parent to change his or her ways as it relates to the well-being of a child (see Starzycka v. Wronski, 2005 ONCJ 329).

[51] In addition to the above, rule 17(8)(b) of the Family Law Rules specifically confers upon the court the power to make an order at a case conference, settlement conference or trial management conference, requiring a party to attend a program offered through a community service or resource. While one may question whether the term “program” includes therapy or counselling, in light of the court’s duty to promote active management of family cases, which includes encouraging and facilitating the use of alternatives to the court process (rule 2(5)), I am of the view that a large and liberal interpretation of the word “program” so as to include some forms of therapeutic intervention is warranted and appropriate in a family law context.

[52] A large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting, including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children. As is the case here, there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.

2- Even if the court has jurisdiction to make therapeutic orders, does the Health Care Consent Act require that consent (the parents’ or the child’s) be provided?

[53] A finding that the court has jurisdiction to make therapeutic orders does not end the analysis. Aside from the practical limitations that such orders may have on parties who have shown no willingness to participate or cooperate, section 10 of the HCCA, which provides that a treatment cannot be administered to a person without his or her consent, presents statutory limitations as well. Section 10 of the HCCA states:

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.

[54] Therefore, for the HCCA to apply such that the consent of a person is required before a therapeutic order can be made, there must be a finding that: 1) the therapeutic order sought falls within the definition of “treatment”, and 2) the professional administering it is a “health practitioner” as defined by the HCCA.

[55] A health practitioner is defined by the HCCA as a member of a College under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or a member of a category of persons prescribed by the regulations as health practitioners. Physicians and psychiatrists (members of the College of Physicians and Surgeons of Ontario), psychologists (members of the College of Psychologists of Ontario) and psychotherapists (members of the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario) are health practitioners for the purpose of s. 10 of the HCCA; social workers, however, are not always captured by the HCCA (they are when providing psychotherapy services, as defined in the Psychotherapy Act, 2007, S.O. 2007, c. 10, Sched. R, which came into force in 2015, and by virtue of recent changes to the Regulated Health Professions Act, 1991, which came into force on December 31, 2017).

[56] This is an important distinction because the provision of “counselling services” is not exclusive to psychotherapists (members of the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario) or psychologists. In the family law realm, social workers and other professionals with significant experience and training in all aspects of family relationships and dysfunctions do offer various types of services to parents and children, including counselling services, as do other family professionals. If the service is to be provided by a person who is not a “health practitioner” as defined by the HCCA, it would not engage the application of the HCCA.

[57] “Treatment” is defined as follows by the HCCA:

“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.

[58] Clearly, to meet the definition of “treatment” under the HCCA, the intervention must be “health-related” and, by virtue of the exception set out in subsection (g), must be a course of action that poses a risk of harm to the person.

[59] The Oxford’s English Dictionary defines the term “health” as “a person's mental or physical condition.” However, not all forms of counselling will be “health-related.” The Canadian Counselling and Psychotherapy Association defines “counselling” as follows:

Counselling is the skilled and principled use of relationship to facilitate self-knowledge, emotional acceptance and growth and the optimal development of personal resources. The overall aim of counsellors is to provide an opportunity for people to work towards living more satisfyingly and resourcefully. Counselling relationships will vary according to need but may be concerned with developmental issues, addressing and resolving specific problems, making decisions, coping with crisis, developing personal insights and knowledge, working through feelings of inner conflict or improving relationships with others.

[60] It would appear that in most provinces, the distinction between the terms “psychotherapy” and “counselling” is difficult to make. The Canadian Counselling and Psychotherapy Association offer the following explanation:

It is not possible to make a generally accepted distinction between counselling and psychotherapy. There are well founded traditions which use the terms interchangeably and others which distinguish between them. If there are differences, then they relate more to the individual psychotherapist’s or counsellor’s training and interests and to the setting in which they work, rather than to any intrinsic difference in the two activities. A psychotherapist working in a hospital is likely to be more concerned with severe psychological disorders than with the wider range of problems about which it is appropriate to consult a counsellor.

In private practice, however, a psychotherapist is more likely to accept clients whose need is less severe. Similarly, in private practice a counsellor’s work will overlap with that of a psychotherapist.

Those counsellors, however, who work for voluntary agencies or in educational settings such as schools and colleges usually concentrate more on the ‘everyday’ problems and difficulties of life than on the more severe psychological disorders. Many are qualified to offer therapeutic work which in any other context would be called psychotherapy.

[61] In Ontario, the term “psychotherapy”, which is now a regulated practice under the HCCA, is clearly defined in the Psychotherapy Act as follows in section 4:

In the course of engaging in the practice of psychotherapy, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to treat, by means of psychotherapy technique delivered through a therapeutic relationship, an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgement, insight, behaviour, communication or social functioning.

[62] Clearly, to fall within the definition of “psychotherapy” there must be a serious disorder, the treatment of which poses serious risks to the person’s well-being. Consequently, it appears clear that psychotherapy services meant to address a health-related issue would fall within the ambit of the HCCA, and would require the consent of the participant. However, counselling services meant to address relationship issues, for instance, or health-related therapy which poses little to no risk to the person, would not be captured by the HCCA and could be ordered without the participant’s consent.

[63] This exception to the definition of “treatment” set out in subsection (g) has received very little judicial attention so far, let alone in a family law context. However in E.T. v. L.D., and although she did not specifically point to relevant provision in the HCCA, Faieta J. found that the multi-day intensive intervention program offered by a team of mental health professionals in Toronto led by Dr. Barbara Fidler (“Families Moving Forward”) was not a “treatment” because it was designed to ameliorate the family relationships and, as such, posed little or no risk of harm to the parties or the children. At paragraph 60, she added:

In any event, I am not satisfied that the Families Program whose purpose is to prevent strained family relationships constitutes “treatment” within the meaning of s. 2 of the HCCA given its focus on treatments that have a “health related purpose.”

[64] However, in Barrett v. Huver, the same program (“Families Moving Forward”) was found to meet the definition of “treatment” by Shaw J. Similarly, Perkins J. in L. (N.) v. M. (R.R.), 2016 ONSC 809, 76 R.F.L. (7th) 428, found that the reunification program offered by Dr. Richard Warshak in the United States (Family Bridges) was a “treatment” under the HCCA. The only other case that I am aware of, and in which the “little or no risk” exception was used, is one made in a criminal law context where the taking of blood at the hospital was found not to be a treatment pursuant to the HCCA (R. v. Lachappelle, 2003 CarswellOnt 5289).

[65] I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being. These negative consequences have been documented in countless court decisions in the past, including in many of those cited above.

[66] I am of the view that most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA. While there is no doubt that individual and family counselling, if successful, will have a significantly positive impact on everyone’s health, their goal will usually be to address stress management strategies and inter-relationship management strategies. As such, such therapeutic interventions will not be “health-related” and, if they are, they will usually pose little or no risk of harm. The risk of harm, particularly to children, will often reside in NOT administering them. This being said, the question as to whether a specific therapeutic intervention is a treatment pursuant to section 2 of the HCCA needs to be determined on a case-by-case basis.

[67] To the extent that a therapeutic intervention is considered to be a “treatment” to be provided by a “health practitioner” as defined by the HCCA, the parents’ consent will be required before a therapeutic order can be made. This is clearly set out in section 10 of the HCCA. An older or more mature child’s consent will also likely be required (for a detailed analysis of whether and when a child’s consent to treatment is necessary under the HCCA, see Children's Aid Society of Toronto v. M.S., 2018 ONCJ 14 and L. (N.) v. M. (R.R.)).

3- Factors relevant to the decision to make a therapeutic order

[68] Even if the court has jurisdiction to make a therapeutic order, and even if the HCCA does not apply such that the parties’ and the older child’s consent may be dispensed with, it remains within the discretion of the judge to determine whether to make that order or not. As stated by the court in Testani v. Haughton (para. 18) and in Barrett v. Huver (para. 22), such orders should be made sparingly.

[69] In exercising that discretion, courts should consider a number of factors. Borrowing from the factors highlighted in Jarvis J.’s thoughtful decision in Testani v. Haughton, and adding some of my own, I find that the following factors are hugely relevant to a judge’s discretion to make a therapeutic order:

a) Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed? b) Is there compelling evidence that the counselling or therapy would be beneficial to the child? c) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)? d) Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by the recalcitrant parent? e) Is the child likely to voluntarily engage in counselling/therapy?

[70] In some cases, the court’s inability to clearly determine the cause for the breakdown of the parent-child relationship played a significant role in its decision to decline making the therapeutic order. That is because the therapy proposed was specifically aimed at addressing a particular diagnosis which had not yet been made. For instance, in Barrett v. Huver, the father was alleging that the mother was severely alienating the child, and was proposing the Families Moving Forward program as the cure for such alienation (although it appears that the program can address a much wider variety of child-resisting-contact situations). At paragraph 17, the court stated that it was impossible 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 the father and the children.”

[71] In other circumstances, ascertaining the exact cause for the strained relationship was found to be irrelevant. This was the case in McClintock v. Karam, where the court stated in making a therapeutic order:

31 First, I am deeply troubled by the fact that [the child] 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 [the child] 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 [the child] 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 [the child] turned 13.

[72] In many cases where the court declined to make a therapeutic order, the court was not satisfied based on the evidence adduced that the proposed therapeutic intervention would be beneficial to the child (See for example Snider v. Laszlo, [2009] O.J. No. 5032, Silver v. Silver and E.H. v. O.K.). The presence of a professional assessment or opinion clearly setting out the cause(s) of a child’s distress or the family’s dysfunction(s), and the means to address same, will go a long way in convincing the court to make the order, even in the context of a motion for temporary relief.

[73] Therapeutic orders sought in the context of a motion, based on untested and contradictory evidence or without a professional assessment, may run the risk of not properly addressing the issues that they mean to resolve. On the other end, delays in imposing therapeutic orders in situations of high conflict may increase the risks associated with unjustified rejection, estrangement and alienation. In the presence of such family dysfunction, the longer a child or parent goes without therapeutic intervention and (as is often the case) without access, the more difficult it will be to repair the relationship (McClintock v. Karam, para. 34).

[74] In Testani v. Haughton, Justice Jarvis J. stated that resistance to therapy was an important factor to consider, but that it was not the determining factor as to whether such an order should be made. There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling. The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage.

[75] In more severe estrangement or alienation cases, courts have often imposed therapeutic orders despite the alienating parent’s strongly voiced objections to counselling or therapy (see L. (J.K.) v. S. (N.C.), McClintock v. Karam, C. (W.) v. E. (C.), Spencer v. Beier and Hazelton v. Forchuk). Courts may also resort to “strong judicial recommendations” (without making an order) that the custodial or favoured parent engage in therapy and/or ensure a child’s regular and meaningful participation in same, failing which a change in custody will be considered.

[76] Since children are not parties to the family law proceeding, courts do not have the power to make orders compelling them to engage in therapy or counselling. However, courts can order parents, as custodians of their children, to ensure their timely attendance therein. As stated in C. (W.) v. E. (C.), children do not always get to do whatever they want, nor do they always get to refuse to do things that they are otherwise required to do (see also Snider v. Laszlo, [2009] O.J. No. 5032, and McClintock v. Karam).

[77] This being said, the older a child is, the less likely that he will meaningfully engage in a therapeutic process that is imposed upon him despite his clearly voiced refusal to do so. When an older or more mature child is strongly objecting to a therapeutic process, it may be inappropriate to make the therapeutic order. Such was the court’s conclusion in Sine v. Bannister (16 year old), in Karwal v. Karwal (17 year old), and in Mattina v. Mattina, 2017 ONSC 5704, affirmed at 2018 ONCA 641 (17, 16 and 10 year olds).

[78] I am of the view that in ascertaining a child’s willingness to engage in a therapeutic process, the court should consider the following:

a. How old is the child? b. Is there clear evidence about the child’s willingness/unwillingness to engage (or re-engage) in counselling? (courts should be cautious when the only evidence of a child’s alleged strong resistance to therapy comes from the “favoured” parent) c. Are there ways in which a court could convince an older child to cooperate? (By involving a child’s counsel? By offering an opportunity to meet with the judge? By any other means?)

[79] If the court does exercise its discretion to make a therapeutic order, the therapist tasked with providing the service should be clearly identified or, alternatively, a judicially supervised process for the identification and appointment of such therapist should be clearly set out in the order. There should also be close judicial monitoring of the parties’ ongoing compliance with the therapeutic order to ensure regular and meaningful participation by all parties involved.

[80] With the greatest of respect for those who hold a different view, I am of the view that family courts do have an obligation – and a responsibility – to sometimes monitor such petty things as parties’ adherence to a therapeutic schedule. That responsibility lies upon the court as a result of its duty to promote the best interests, protection and well-being of children.

[81] The recognition that family litigants often need additional resources, assistance and judicial persuasion to settle their disputes was acknowledged and recognized by the codification of active case management in our Family Law Rules. Court orders in family law cases, particularly those involving children, often fall on deaf ears when the case involves highly conflictual parents who have failed to put their children’s well-being above their dysfunctional relationships with each other. The court has a duty to ensure that orders are promptly complied with and must be in a position to take swift actions if they are not, failing which children will undoubtedly suffer (excellent examples of such orders can be found in Berhanu v. Awanis, N.H. v. J.H., C. (W.) v. E. (C.), S.D.M. v. P.M., and Rea v. Rea).

Application of the Above Principles to the Facts of this Case

[82] I have already stated my conclusion based on the evidence before me, that any form of access between Udara and his father, in the current circumstances, would not be in his best interest. An integrated therapeutic intervention for all members of this family is necessary before access can resume, and some degree of progress on the part of each family member to deal with their individual issues must be shown before access and reunification therapy can begin. Udara needs a number of counselling sessions to prepare him to resume access visits with his father, otherwise court-ordered access between them will only anger him and further damage their relationship. More importantly, and in the exceptional circumstances of this case, I am of the view that Udara needs to understand my reasons for insisting on his participation in this rebuilding process, so as to increase his willingness to voluntarily engage and cooperate in this process, and attend access visits.

1- Does the HCCA apply in this case?

[83] Having concluded that I have jurisdiction to make a therapeutic order, I must now consider whether the therapeutic order sought by the father, as recommended by Dr. Weinberger, requires the parents’ and/or Udara’s consent.

[84] I find that the structured anxiety management program recommended by Dr. Weinberger to the father might be “health-related”, as it appears to be aimed at addressing the father’s mental and emotional reaction to what he perceives or experiences as stressful situations. In other words, this type of therapy will likely seek to identify emotional behaviors with a view of building the father’s insight into those patterns, and help change his response. I find that there is a mental health dimension to this program. However, whether or not it is a health-related therapy, I find that it poses no risk of harm to the father and as such, I do not find that it meets the definition of “treatment” under the HCCA.

[85] The counselling recommended to both parents in order for them to gain self-awareness and insight, and to provide them with better problem-solving and co-parenting skills, is not health-related and does not engage the HCCA either.

[86] For Udara, Dr. Weinberger recommended private counselling sessions aimed at providing him with a private forum to learn how to better deal with his issues with his father and how to manage the stress he is under. This type of counselling in my view is not health-related as contemplated by the HCCA. It focuses mostly on increasing Udara’s insight into his family situation and giving him the tools he needs to effectively overcome the challenges arising from his relationship with his father, manage his stress, and build resilience. The same conclusion applies in my view to the recommendation that Udara and his father engage in joint counselling sessions to try to rebuild a functional and healthy relationship.

[87] Even if I am wrong in that conclusion, I find that the proposed counselling for Udara (both individual and joint with his father) poses little to no risk to Udara and as such, does not engage the HCCA.

2- Is a therapeutic order appropriate in the circumstances of this case?

[88] The evidence before me convinces me that the estrangement between Udara and his father has been caused by many factors, not the least of which is the father’s own conduct and behaviour towards him, over the course of many years. While I find that the mother, despite her voiced willingness to support the relationship between Udara and his father, by her actions has conveyed a very different message to Udara, I do not accept that the mother has engaged in what we much too commonly refer to as “parental alienation”, as alleged by the father.

[89] While this therapeutic order is sought in the context of a motion, not after a full blown-trial, it is important to note that this was the fourth motion hearing before me on the same issues, and that Dr. Weinberger’s conclusions and recommendations, produced after a thorough assessment process, were the subject of cross-examination by both parties’ counsel. I am satisfied that I have all the evidence I need upon which to base a therapeutic order.

[90] I am equally satisfied that the integrated therapeutic intervention recommended by Dr. Weinberger for all members of this family would not only be beneficial to Udara, it is the only way that I can foresee Udara rebuilding a positive relationship with his father at this time.

[91] While the mother took the position at the motion that counselling could not be imposed upon her or Udara without their consent, I am confident that, if the order is made, the mother will comply with its terms. The undisputed evidence is that the mother has agreed to counselling for Udara on several occasions since the parties separated. When Ms. Chagarlamudi discontinued her services to this family, she went ahead and retained (albeit unilaterally) a counsellor for Udara. She understands, acknowledges and values the benefits of counselling for herself and for Udara.

[92] During the hearing of this motion, it became clear to me that the mother’s resistance to counselling for herself and Udara was mainly for financial reasons; and more importantly because she did not want to have to physically force twelve year old athletic Udara to attend counselling against his will. However, while there is clear evidence of Udara’s strong resistance to access with this father, there is little evidence of a strong objection on his part to participate in individual counselling.

[93] Udara is a very bright and articulated twelve year old boy. He is doing well academically and last year he served as a mentor for his peers. His school reported that there are no concerns about him at school, other than his very high level of stress related to his relationship with his father. Despite this remarkable academic review, Udara has suffered from his parents’ conflict and from having been “forced” to exercise access with his father under the present circumstances. As a result, he has felt compelled to take matters into his own hands and to, for example, speak of suicide or act in a way to humiliate and embarrass his father in public in order to get his message across. Dr. Weinberger has expressed the view that Udara’s mental health had become increasingly compromised by, among other things, the stress of his relationship with his father and his inability to be heard by him and others.

[94] Udara, at his age and given his level of maturity, needs to have a voice in this process, but not necessarily a choice. While he may not see any benefit to having a relationship with his father at this time, I am not sure that at twelve years of age he is capable of fully grasping the long-term repercussions of terminating his relationship with his father. Given his age and level of maturity, however, I am of the view that he will be able to understand and appreciate the concerns of this court and of all the professionals involved in his life once he has had an opportunity to be fully heard, including by his father. Furthermore, I believe that he will more readily engage in counselling if he is given the right to voice his wishes and preferences with regards to the choice of his own counsellor.

[95] At the hearing of this motion, I conveyed to the parties my view that given Udara’s age, and in the circumstances of this case, he should have his own legal representation. The parties agreed and confirmed that they were prepared to privately retain a lawyer for Udara, to ensure an expeditious process. They provided the names of two children lawyers and agreed to quickly retain either one of them, subject to availability.

[96] Also during the motion hearing, I sought counsel’s submissions as to how my decision once released should be conveyed to Udara in a way that would maximize his willingness to engage in any therapeutic process and to attend access with his father as may be ordered. Both parties were in agreement that I, the judge, should privately meet with Udara to do this. While I have jurisdiction to do so, judicial meetings with children are not a common practice in this jurisdiction. However, I do agree that in the exceptional circumstances of this case, there would be significant value in my having an opportunity to speak with Udara to explain my reasoning, hear his concerns about my decision, and assist in getting his meaningful involvement in this process. Since he will soon be legally represented, however, I will leave it to his and his lawyer’s discretion to decide whether or not they do wish to follow up on my offer to meet with them.

Temporary Order

For those reasons, I make the following temporary order:

1. Udara will remain in his mother’s primary care for the time being.
2. By no later than November 15, 2018, the father shall engage in a structured anxiety management program to help reduce his anxiousness and fears around losing his child, and his emotional reaction towards the mother. The father shall also engage in therapy to assist him in developing self-awareness and insight into how he contributes to the problem and to provide him with problem-solving skills to better relate to Udara and to cooperate with the mother.
3. The father’s proposed anxiety management program and therapist shall be approved by Dr. Weinberger. A copy of Dr. Weinberger’s assessment, as well as this decision, shall be provided to the father’s therapist(s) once retained. The father’s therapist(s) is hereby authorized to provide the court with a summary of the issues addressed in, and of the father’s attendance at, counselling sessions, as well as of the father’s overall progress.
4. By no later than November 15, 2018, the mother shall engage in therapy to assist her in developing self-awareness and insight into how she contributes to the problem including how she influences Udara against his father, intentionally or otherwise, and to help her build her co-parenting skills.
5. The mother’s proposed therapist shall be approved by Dr. Weinberger. A copy of Dr. Weinberger’s assessment, as well as this decision, shall be provided to the mother’s therapist once retained. The mother’s therapist is hereby authorized to provide the court with a summary of the issues addressed in, and of the mother’s attendance at, counselling sessions, as well as of the mother’s overall progress.
6. The parents shall ensure Udara’s continued attendance in individual and confidential counselling sessions aimed at providing him with a private forum to learn how to better deal with his issues with his father, prepare him for the resumption of access with his father, and help him manage the stress he is under. Such confidential counselling includes the prohibition of participation as a witness in court proceedings with respect to Udara, subject to the counsellor’s discretion to do so, on his or her own volition. Neither parent shall communicate with Udara’s counsellor, once retained, unless at the counsellor’s specific request, which shall be made known to both parents.
7. A copy of Dr. Weinberger’s assessment, as well as this decision, shall be provided to Udara’s counsellor once retained. Udara’s counsellor shall be entitled to consult other professionals providing services to Udara as he/she deems necessary. The parents shall sign consents and authorizations for Udara’s counsellor as may be required to give effect to this order. Udara’s therapist is hereby authorized to provide Udara’s lawyer with an update and to communicate with the parties or the court, as he or she may deem necessary and/or appropriate, at his/her sole discretion.
8. Neither party shall discuss with Udara the nature and content of his individual confidential counselling sessions.
9. The parties shall provide Dr. Weinberger within 10 days with at least two names (each) of counsellors located in the west end of Ottawa, including Kanata, who have confirmed their ability to begin counselling sessions with Udara by November 15, 2018, and seek Dr. Weinberger’s approval of same. The names of the counsellors approved by Dr. Weinberger to provide Udara with individual counselling shall be communicated to Udara’s lawyer, who shall be responsible to communicate those names to Udara and to help him choose the therapist he wishes to work with. This appointment process shall be completed by November 15, 2018, at the latest.
10. Within 10 days, the parties shall retain Ms. Julie Guindon or Ms. Pamela Barron to represent Udara in this proceeding. If neither are available or agreeable to represent Udara, another lawyer agreed to by both parties shall be appointed.
11. The net cost of Udara’s counselling (once insurance coverage, if any, is deducted) as well as the cost of Udara’s legal representation shall be paid directly from the proceeds from the sale of the parties’ matrimonial home which are currently being held in trust. The parties shall forthwith sign any direction and authorization allowing for the funds to be disbursed as necessary. Should the parties run out of trust funds and be unable to agree as to how to pay for those services, I may be spoken to.
12. At the request of Udara, and with the consent of his counsel, a meeting may be arranged between Udara, his lawyer and myself, the purpose of which shall be to afford Udara an opportunity to discuss with me my decision, hear his concerns about it, and insist on his meaningful collaboration and involvement in this process.
13. These parties shall appear before me on November 15, 2018 at 2 p.m. to discuss their progress and/or any difficulties in engaging in the above services. If a party or counsel is unavailable on that date, another date can be arranged through Trial Coordination before November 15, 2018. At that time, the father shall provide me with further and better information with regards to available private supervised access services available in the greater Ottawa region (including about the professional qualifications of access supervisors, availability of services (schedule) and costs) so that options in that regard can be better explored until supervised access is available at Ottawa Family Services.
14. Both parties shall forthwith apply to the Supervised Access Program at Family Services Ottawa, so that they are put on the waiting list without further delay (if not already done).
15. Another motion hearing shall be scheduled before me on or before December 20, 2018, to revisit the issue of temporary access and joint reintegration counselling between Udara and his father.
16. Dr. Weinberger shall, if he agrees, undertake an update assessment in six months in order to monitor the progress, if any, achieved by the parties and Udara, and provide the court with updated recommendations.

Procedural Orders

17. I shall remained seized of all motions in this matter, as well as of the trial management conference, if any, and I shall be the trial judge should this matter proceed to trial.
18. A judge shall be appointed by the Local Administrative Judge to preside on all settlement conferences in this matter.
19. This matter shall be added to the September 2019 Family Trial List.

Madam Justice Julie Audet Released: October 10, 2018