Court File and Parties

Court File No.: FS-18-260-00 Date: 2019-03-08

Superior Court of Justice - Ontario

Re: Robert Cucci v. Anna Lecce Cucci

Before: Kumaranayake J.

Counsel: Hayley E. Dilazzaro, for the Applicant Avy Ben-zvi, for the Respondent

Endorsement

[1] By a notice of motion, originally returnable on February 28, 2019, the Applicant seeks the following relief, as set out in the notice of motion:

1. Pursuant to Rule 3(5) of the Family Law Rules, an Order abridging time for service and filing of this motion, and any reply, if required.

Therapies Currently in Place

2. An Order that the Respondent Mother shall continue to attend for therapy with Dr. Barbara Fidler and Accendus Group.

3. An Order that the Respondent Mother shall pay for all future fees related to Accendus Group and Dr. Fidler’s work with any of the following: the Applicant Father, the Respondent Mother, or the children of the marriage, namely, Michela Cucci (“Michela”), born July 28, 2001, and Gianantonio Cucci (“Gianantonio”), born December 17, 2003.

4. An Order that the Respondent Mother shall within 5 days pay the outstanding invoice owing to Accendus Group in the amount of $10,936.71.

5. An Order that the Respondent Mother shall within 5 days pay a retainer of $7,500 to Accendus Group. Any balance left from the retainer after invoicing for all meetings and services provided between January 26, 2019 and the commencement of new therapies (if any), shall be transferred to the new therapists (if any).

6. An Order that the “good faith” retainer paid by the Applicant Father, Robert Cucci, of $750 to Accendus Group shall be returned to him.

New Therapies and “Black-Out” Period

7. An Order that the Applicant Father, the Respondent Mother, Michela, and Gianantonio shall attend Families Moving Forward for intensive reunification therapy during March Break 2019.

8. An Order that unless Accendus Group, in conjunction with Dr. Fidler and/or Families Moving Forward, recommend otherwise (such recommendation to be made in writing and delivered to counsel for both parties), a black-out period shall be put in place in respect of Michela and Gianantonio after attendance at Families Moving Forward over March Break 2019. The black-out period shall be 90 days in duration (or of a duration specified by Accendus Group, in conjunction with Dr. Fidler and/or Families Moving Forward) and shall involve Michela and Gianantonio residing with the Applicant Father without any contact by the Respondent Mother. If recommended by Accendus Group, in conjunction with Dr. Fidler and/or Families Moving Forward, the black-out period may be replaced with an out-of-town vacation of a specified duration.

9. An Order that the Applicant Father shall not pay child support for any period of time the black-out period is in effect for one or both of the children.

10. An Order that the Respondent Mother shall pay for all fees related to intensive reunification therapy provided by Families Moving Forward during March Break 2019 (including the intake process), and for any therapy recommended by Families Moving Forward after March Break 2019 intensive program.

11. An Order that the Respondent Mother shall cooperate with the intake process for Families Moving Forward, including completing all intake forms and attending all intake meetings, and shall adhere to any deadlines set by the program facilitators.

12. An Order that Michela, given her age, shall complete any forms required of her to participate in Families Moving Forward’s March Break 2018 [sic] program and any subsequent programing.

13. In the event that the parties and children are not admitted to Families Moving Forward’s March Break 2019 program, Orders that

    a. The parties shall cooperate with any alternative therapies recommended by Accendus Group, in conjunction with Dr. Fidler, including, but not limited to Overcoming Barriers’ Family Camp from July 8 to 13, 2019 in Vermont, USA; working with a Parenting Coordinator; or working with a new therapist.

    b. The Respondent Mother shall pay for any alternative therapies recommended by Accendus Group in conjunction with Dr. Fidler.

    c. Unless Accendus Group, in conjunction with Dr. Fidler, recommend otherwise (such recommendation to be made in writing and delivered to counsel for both parties), a black-out period shall be put in place in respect of Michela and Gianantonio at such time as Accendus Group, in conjunction with Dr. Fidler, deem appropriate. The black-out period shall be 90 days in duration (or of a duration specified by Accendus Group, in conjunction with Dr. Fidler) and shall involve Michela and Gianantonio residing with the Applicant Father without contact by the Respondent Mother. IF recommended by Accendus Group, in conjunction with Dr. Fidler, the black-out period may be replaced with an out-of-town vacation of a specified duration.

Scheduling & Adherence to the Reintegration Process

14. An Order that the reintegration process shall take precedence over other family activities and employment (within reason) and that the Respondent Mother shall respond to request for appointments with Accendus Group and Dr. Fidler/Families Moving Forward promptly, with appointments being set within 48 hours of each request.

15. An Order that the Respondent Mother shall forthwith sign the Co-Parenting Agreement (the foundation document for reintegration work), as requested by Accendus Group and Dr. Fidler; upon request, sign a Step-up-Parenting Schedule (which is also part of the reunification process); upon request, sign the to-be-drafted Parenting Plan (which is the document governing future parenting); and upon request, sign any other consents which will assist with the reintegration process and the intensive therapy, as requested by Accendus Group and Dr. Fidler.

16. An Order for any monetary penalties for future non-compliance with its Orders that this Honourable Court deems appropriate.

Costs

17. An Order for full-recovery costs of this motion.

18. An Order for any additional costs deemed appropriate by this Honourable Court for the motion heard October 26, 2018.

19. Any such further Order and/or relief as this Honourable Court deems just and appropriate or counsel may advise.

[2] The motion was originally returnable on February 28, 2019. It was served on February 19, 2019. On February 21, 2019, the Applicant’s factum and book of authorities were served. The motion was adjourned on consent to Friday March 1, 2019, as counsel for the Respondent was not available.

[3] On March 1, 2019, the motion was before me and the Respondent sought a further adjournment on the basis that her Responding affidavit, sworn on February 27, 2019, and served on February 28, 2019, had not been filed.

[4] The Applicant’s position was that the motion should proceed on the basis of the material which was filed (i.e. only his materials) as the motion had been served in compliance with the Family Law Rules and the Respondent had sufficient time to respond to same, as provided by those rules.

[5] The Applicant objected to the responding affidavit being filed and considered on March 1, 2019, as he had not been able to prepare a reply affidavit. The Applicant submitted that the issues were urgent given that he was seeking an order that the parties and their children participate in intensive family reunification therapy during the March Break, which was just over one week away.

[6] The Respondent submitted that she would be prejudiced if the motion proceeded without consideration of her responding affidavit. Counsel for the Respondent suggested that the motion be adjourned to Thursday, March 7, 2019, as that was still before the start of the March Break. Counsel for the Respondent also submitted that his client wanted to retain an expert, but acknowledged that one had not been identified yet.

[7] I agreed that the issues were time sensitive, given that some of the relief related to counselling/therapy over the March Break. However, I was not prepared to hear the motion without the Respondent’s affidavit or the Applicant’s reply affidavit. Further, I indicated to counsel that this motion was brought on the regular motions list, which meant that their time estimate was that less than one hour would be needed to argue the motion. However, it was abundantly clear that this was a motion that would require more than one hour to argue. The earliest long motion date available was in August 2019, and given the issues, the motion had to proceed prior to then.

[8] Therefore, on March 1, 2019, I adjourned the motion to Monday, March 4, 2019, before myself to be argued as a long motion, and I fixed timelines for the filing of the responding affidavit; and the service and filing of the Applicant’s reply affidavit and the Respondent’s factum and book of authorities. Both parties complied with these timelines.

[9] The parties filed extensive materials for the motion, which I have reviewed. The Applicant relied on a total of 6 affidavits: his affidavits that were sworn on October 2, 2018; October 16, 2018; October 24, 2018; February 18, 2019; and March 3, 2019; and the affidavit of Dayna Shoot, sworn February 25, 2019. The Respondent relied on her affidavits that were sworn on November 30, 2018; and February 27, 2019 as well as her financial statement sworn on February 27, 2019. Each party also filed a factum and book of authorities.

[10] Following argument of the motion of March 4, 2019, I reserved my decision. For the reasons that follow, I grant some of the requested relief and dismiss the balance of the motion.

Background and Summary of the Parties’ Positions

[11] The Applicant and the Respondent were married on August 9, 1997 and separated on August 8, 2016. There are two children of the marriage: Michela Cucci, born on July 28, 2001; and Gianantonio Cucci, born December 17, 2003. Michela is currently 17 years old and she will turn 18 in approximately four months. Gianantonio is currently 15 years old.

[12] Following the parties’ separation, neither child wished to see the Applicant. The Applicant and the Respondent separated after the Respondent confronted the Applicant about an affair he was having. She had confirmation of this affair as a result of hiring a private investigator.

[13] The children, in particular Michela, were angry with their father for his conduct and how, from their perspective, he treated their mother. There was conflict in the home prior to separation as well. Essentially, the children did not want their father to be a part of their lives.

[14] In or about July 2016, Michela started to receive individual counselling from Irene Mellas who is a Registered Social Worker and Registered Psychotherapist. Gianantonio started his counselling with Ms. Mellas in August 2016. This counselling was arranged by the mother. Both children still receive counselling from Ms. Mellas.

[15] In December 2016, the parties jointly retained Accendus Group to determine the reason for the children’s rejection of their father (the Applicant) and how and when to reintegrate the father with the children. The parties worked primarily with Greg Koval and Mary Jo Rothecker.

[16] On June 30, 2017, the Applicant and the Respondent signed a Parenting Reintegration Agreement that provided that:

1. the parties would both continue to participate in reintegration therapy with Mr. Koval and Ms. Rothecker;

2. the parties and the children would attend for appointments as requested and their respective schedules would be taken into consideration when appointments were being scheduled;

3. the Applicant would pay for one half of the costs of this therapy and the Respondent would pay, on a without prejudice basis and subject to her right to seek indemnification from the Applicant, the other half at such time as the financial issues were resolved;

4. the children would continue to see Ms. Mellas, once per month, or more or less often, subject to Mr. Koval and Ms. Rothecker’s recommendation. The Applicant was to pay half the costs, without prejudice, and subject to his right to seek indemnification from the Respondent at such time as the financial issues were resolved. The Respondent agreed to continue to pay for half of this therapy at that time.

5. The Applicant and the Respondent both agreed to provide Mr. Koval and Ms. Rothecker access to Our Family Wizard.

6. The goal of reintegration therapy was to develop a parenting plan.

[17] Accendus Group prepared an Executive Summary, dated February 26, 2018, in which they outlined their involvement. Accendus Group made the following recommendations at the conclusion of the Executive Summary:

Conclusion and Recommendations

1. Visits between Rob and Gianantonio continue and the next visit should be an outing to the Auto Show and/or attendance at the Basketball game on March 16, 2018; When asked on February 24 about the basketball game (basketball is Gianantonio’s only fervent sports interest) Gianantonio said he did not want to go with his father. But he agree to dinner and movie with his father and with Gregory on or about March 12, 2018.

2. Completion of the Parenting Plan by the writers or by the PC [parenting co-ordinator].

3. It is in the best interests of the children, that Rob and Anna make parenting decision about the children on Family Wizard and Anna will post her weekly reports to that site and Rob will communicate with Anna about those updates. Their communications will be respectful and just about the children. A form of joint decision-making about the children will assist in diminishing the children’s negative perceptions of their father.

4. Appointment of a Parenting Coordinator for one year with an option to renew for an additional time to be determined by the PC;

5. Because the writers see no permanent obstacle to Rob’s time with the children, Rob should be able to pick up Gianantonio from school and deliver him back to the driveway of his mother’s home after the visit. Gianantonio will text his mother as he about to arrive at home to insure that she is ready for his arrival. Rob should be able to bring Gianantonio to appointments with the writers and to other medical/dental appointments;

6. At some point in the near future, to be determined by the writers or by the PC, Rob will take Gianantonio for a visit with his paternal grandparents

7. Sleep overs for Gianantonio at Rob’s parents home (there is a separate bedroom for him) will commence when the writers or the PC determine that the time is right;

8. When Michela’s assessment is completed, the writers request that meetings with Michela re-commence in order to review the assessment, Michela’s state of mind, updates from Irene Mellas and to determine if and when visits with her father may commence. Alternatively, the completion of the assessment may be the best time to introduce a more intensive reintergration to this family. Families Moving Forward, Family Bridges or Overcoming Barriers are intensive re-integration programs available for this purpose. Following an intensive reintegration for all the family members, the writers and the PC would be retained to continue the support program, which is required, to build on the progress made at the ‘camp’ or during the intensive weekend of reintegration.

9. A Court Order, clearly setting out all of the above requirements would be necessary to insure the efficient progression of all of the above.

[18] The parties attended mediation and on February 28, 2018, the parties signed Minutes of Settlement by which the financial issues were resolved. It was also agreed that they would continue to follow Mr. Koval and Ms. Rothecker’s recommendations. Further, it was agreed that there would be an assessment for Michela as Michela and the Respondent had reported that Michela was experiencing symptoms of anxiety as a result of certain sounds (i.e. hearing typing on a keyboard, or gum being chewed).

[19] On May 24, 2018, the Applicant and the Respondent signed a Separation Agreement. The relevant provisions for the purposes of this motion are:

1.4 This Agreement incorporates the terms of the Minutes of Settlement as between the parties dated February 28, 2018.

2.1 The children shall reside with Anna.

2.2 Rob and Anna shall continue to cooperate with Accendus Group as set out in the Agreement dated June 30, 2017, attached at Schedule “A” [the Parenting Reintegration Agreement referred to above in paragraph 16], save and except for variation in regard to payment, as set out at Part 3 of this Agreement. For further clarity, the Agreement dated June 30, 2017 shall remain in full force and effect, subject to the above-noted variation, and both parties shall remain bound by the terms contained therein, including, but not limited to, the following:

(a) That Anna bring the children to appointments as requested by the counsellors (without limiting Rob’s ability to bring the children to appointments, as recommended by the counsellors);

(b) That Irene Mellas’ appointments with the children shall be limited to one appointment per child per month, or more or less as recommended by the counsellors at Accendus Group; and

(c) The goal of reunification therapy is the development of a parenting plan.

2.3 Rob and Anna shall follow the recommendations of Accendus Group as set out in their Executive Summary attached at Schedule “B” [this is the Executive Summary referred to above at paragraph 17]

2.4 To clarify recommendation 4 of the Executive Summary, a Parenting Coordinator shall be appointed after a Parenting Plan is completed and executed by both parties. The scope of the Parenting Coordinator’s Authority, as well as payment for same, shall be addressed at the time the Parenting Coordinator is retained but in no event shall Anna be required to pay more than 50% of the costs of the Parenting Coordinator.

3.1 In this section:

(a) “special or extraordinary expenses” means “special or extraordinary expenses” as this phrase is defined in s.7(1) of the Guidelines;

3.2 Commencing March 1, 2018, Rob shall pay to Anna as child support for Michela and Giananthony [sic] the sum of $700 per month. The parties agree that this amount meets the objectives of the Federal Child Support Guidelines.

3.3 Commencing March 1, 2018, Rob and Anna shall share all special and extraordinary expenses on a 50/50 basis, except that Rob shall pay for reunification therapy at Accendus Group and Anna shall pay for private counselling through Irene Mellas. This arrangement with respect to the cost of reunification therapy and private counselling shall continue until reunification therapy ceases, at which point, the cost of private counselling shall be shared by Rob and Anna on a 50/50 basis.

3.4 As he will be paying for the expense from March 1, 2018 onward, notwithstanding any other part of this agreement, Rob shall be permitted to terminate reunification therapy at Accendus Group at his sole discretion.

3.5 Paragraphs 3.2 and 3.3 shall be reviewed on March 1, 2020.

[20] At the time the Applicant and the Respondent signed the Parenting Reintegration Agreement on June 30, 2017, attended mediation on February 28, 2018, and signed the Separation Agreement on May 28, 2018, they were both represented by counsel. The Respondent now has different counsel.

[21] The current Application before the court was issued on October 5, 2018. In the Application, the Applicant seeks the following relief: custody of the children; child support; and that the Respondent comply with the recommendations of the parental reunification therapists (Ms. Rothecker and Mr. Koval) pursuant to paragraph 2.2 and 2.3 of the Separation Agreement, dated May 24, 2018.

First Urgent Motion

[22] The Applicant brought a motion, originally returnable on October 19, 2018, on an urgent basis prior to a case conference being held. The Applicant requested numerous orders requiring that the Respondent comply with the recommendations of Ms. Rothecker and Mr. Koval and attend for counselling with Jacqueline Vanbetlehem; the Respondent pay for all fees associated with Ms. Vanbetlehem’s services; the Respondent bring the children to appointments with Ms. Rothecker and Mr. Koval and to meetings/outings with the Applicant; and that the Respondent cooperate with any further recommendations of Ms. Rothecker and Mr. Koval. As alternative relief, the Applicant requested sole custody and primary residence of the children with the Applicant having decision making authority, the Respondent’s access as recommended by Ms. Rothecker and Mr. Koval, the Respondent pay for the children’s counselling fees with Ms. Rothecker, Mr. Koval and Ms. Mellas; suspension of the Applicant’s obligation to pay child support; the Respondent pay child support; and that the Respondent reimburse the Applicant the amount of $4,208.65 which represents the fees he had paid to date for Ms. Rothecker and Mr. Koval’s counselling.

[23] The motion came before Miller J. She was satisfied that there was sufficient urgency and ordered that the motion be adjourned to October 26, 2018, to permit the Respondent to file her affidavit and for the Applicant to file a reply affidavit. The only issues to be argued were counselling for Michela and for the Respondent. The balance of the relief requested in the notice of motion would be adjourned to a case conference which would be scheduled on October 26, 2018.

[24] On October 26, 2018, Miller J. made the following temporary order:

1. The Applicant Father, Robert Cucci, may schedule an appointment for Michela Cucci (“Michela”), born July 28, 2001, to be assessed for an anxiety disorder at Credit Valley Hospital or Oakville Hospital, and the Respondent Mother, Anne Lecce Cucci, must ensure Michela’s attendance at the scheduled appointment and any subsequent appointments.

2. The Respondent Mother shall forthwith ensure Michela’s immediate attendance at reunification therapy with Ms. Mary Jo Rothecker and Mr. Gregory Koval, of Accendus Group, the frequency of appointments to be determined by those therapists.

3. Pursuant to paragraphs 2.2 and 2.3 of the Separation Agreement dated May 24, 2018, the Respondent Mother shall forthwith attend counselling with Jacqueline Vanbetlehem until such time as Ms. Vanbetlehem, in consultation with Ms. Rothecker and Mr. Koval, determine counselling should cease.

4. Pursuant to paragraphs 2.2 and 2.3 of the Separation Agreement dated May 24, 2018, the Respondent Mother shall cooperate with any further recommendations of Ms. Rothecker and Mr. Koval.

5. The Respondent Mother shall pay all of the costs of her therapy and that of Michela.

6. Fees (if any) associated with Michela’s assessment at Credit Valley Hospital or Oakville Hospital shall be paid by the Applicant Father, subject to re-apportionment, if necessary.

7. In respect of costs of the portion of the motion decided today, the Respondent Mother shall pay the Applicant Father costs fixed at $3,000, inclusive of tax and disbursements, Payable within 60 days.

8. The balance of the issues of the motion originally brought on October 19, 2018 is adjourned to a Case Conference on December 11, 2018 at 10:00 a.m.

[25] On December 11, 2018, a case conference was held before Bielby J. and he made an Order which included how the children would exercise “holiday parenting time with the Applicant”. This aspect of his Order was made on consent and provided that:

1. Michela would have a visit with the Applicant on December 22, 2018, at Accendus office and the visit would occur prior to 2:00 p.m.

2. The children would spend Christmas Eve with the Applicant from 4 to 7 p.m. and that no one other than the children shall attend the visit. The Respondent or her designate may have someone accompany her to and from the Applicant’s home where the Respondent was to drop off and pick up the children.

3. The children would have at least one further visit with the Applicant during the holiday break, approximately one week after Christmas Eve, the exact date to be confirmed in advance by the parties or Accendus Group. Michela’s work schedule would be taken into consideration but time would be made for this visit.

[26] The Order also provided, on consent, that both the parties and Accendus would have access to Michela’s medical records and that the mother would execute an authorization to permit the Accendus Group to communicate with and obtain information from any of Michela’s service providers.

[27] Unfortunately, although the children attended at the Applicant’s home on Christmas Eve, the visit did not proceed. Neither child was willing to go into the home.

[28] The mother was granted an extension of a further 30 days to file her Answer; a settlement conference was to be arranged.

[29] Michela was assessed by Dr. Peltz on May 29, 2018. In his consultation note, Dr. Peltz indicated that Michela “was a 16-year-old with longstanding anxieties and picture consistent with a diagnosis of obsessive-compulsive disorder.” He also noted that Michela acknowledged that “part of the reason she has difficulty visiting [her father] relates to her feeling that she is being disloyal to her mother.” The Respondent provided the Applicant with a copy of this assessment in November 2018, after the urgent motion before Miller J. The Respondent maintains that she did not have a copy of it prior to November 2018. The Applicant does not believe her as the Respondent did not tell him that the appointment had taken place until after the motion before Miller J.

[30] Ms. Mellas has provided the parties with written reports about her involvement with the children. In her report of November 13, 2018, she noted that Michela has been able to discuss her feelings of anger toward her father and that she has been deeply hurt by him. She was noted to be very emotional at times. She expressed a lack of trust towards her father and that she felt she has not been close with him since she was five years old. However, Ms. Mellas did recommend that Michela continue her individual counselling and that she and her father have joint counselling to “further explore whether a positive, healthy, meaningful relationship is feasible at this time.”

[31] With respect to Gianantonio, he was 12 years old when the parties separated. He started to have visits with his father when he was approximately 14 years old, but has been consistent in expressing to her that he does not wish to go for visits. His visits are once per week. Gianantonio reported that his mother encourages him to go for visits. Ms. Mellas recommended that he continue his family counselling and made a strong recommendation that he and his father participate in family counselling.

[32] Accendus Group has provided the parties with several reports during the time that they have been involved. They have outlined numerous occasions where they have encountered resistance from the Respondent which could take the form of not making appointments in a timely manner, not making payments in a timely manner, not completing homework and returning documentation in a timely manner. It was also noted that the Respondent and her counsel taking a very adversarial approach to their interaction with Accendus Group.

[33] In their most recent Addendum, dated February 21, 2019, they expressed their view and concern that Gianantonio has regressed as his presentation in their most recent meetings has changed. He is isolated and not particularly willing to discuss matters. With respect to Michela, it was noted that she did meet with the Applicant at Starbucks as recently as February 15, 2019 and then they walked together to the Accendus Group office. Although Michela maintained that she did not really interact with the Respondent while at the coffee should, she did not refuse to attend to meet him.

[34] Accendus Group continues to recommend that the family participate in the Families Moving Forward program.

Summary of the Parties’ Position

[35] The Applicant maintains that the Respondent is undermining the existing reunification therapy being facilitated by Accendus. He maintains that the Respondent is purposely thwarting not only the reunification therapy, but also attempts at meaningful access between the Applicant and the children. He asserts that the Respondent is less than diligent in following through with the recommendations of Accendus and is dragging out the process.

[36] He asserts that the Respondent through her conduct is alienating the children from him. He points to the Respondent not making the children available for appointments or access. With respect to the Christmas Eve access, he maintains that the Respondent did not follow the order of Bielby J. as in addition to bringing her sister, she also hired Brayden Supervision Services to be present for the exchange, contrary to the recommendation of Accendus.

[37] He maintains that the Respondent should pay for all of the therapies (her individual therapy with Ms. Hurley and Ms. Vanbetlehem, the children’s individual therapy with Ms. Mellas; and the current and future cost of the reunification therapy through Accendus Group and that she is also responsible for the current arrears. The Applicant also asserts that the Respondent should be responsible for payment of the intensive reunification therapy that he seeks in this motion.

[38] He relies on parts of the Separation Agreement and the order of Miller J., dated October 26, 2018, in support of his position that the Respondent should be liable for the costs. He maintains that he cannot afford it and maintains that the Respondent’s financial circumstances are better than what she depicts in her financial statement. He also maintains that the mother is required to pay for all of the Accendus Group fees pursuant to the order of Miller J.

[39] With respect to the 90-day black-out period that he seeks, the Applicant submits that although indicated in the Application that he was seeking custody, he is no longer seeking this. Further, his position is that during the 90-day black-out period, he does not wish to have custodial decision-making power. Rather, he is simply seeking for the children to reside with him for 90 days to continue the reunification process, building on the reunification therapy and the intensive reunification therapy.

[40] The Respondent maintains that she should not be responsible for payment of the Accendus fees for the current reunification therapy. She submits that according to the Separation Agreement, it is the Applicant who is responsible for those specific fees. Further, she submits that she has not been undermining the reunification therapy and that she has been pushing the children to have a relationship with their father.

[41] The Respondent maintains that the Applicant is in a better financial position that what he reports. The Respondent maintains that it is the Separation Agreement which governs who pays for the Accendus Group fees and that the Separation Agreement and the order of Miller J. “co-exist”.

[42] The Respondent maintains that it was the Applicant who breached the order for Christmas Eve access, as there were several members of the paternal extended family present when the Order indicated that only the Applicant was to be present.

[43] She takes the position that she will abide by the Separation Agreement but is critical that the Separation Agreement was not properly drafted. Despite having agreed to retain Accendus Group in December 2016, she now raises concerns about members of the Accendus Group and refers to purported conversations between her former counsel and members of Accendus Group. She has not moved to have the Separation Agreement set aside.

Analysis

[44] Having reviewed the evidence before me, I have concerns about the Respondent’s cooperation with Accendus Group. I am concerned that she has taken a non-collaborative approach to the issues despite her statements that she is being cooperative and despite maintain that she is encouraging the children to have a relationship with the Applicant.

[45] Accendus Group made their initial recommendations over one year ago and the progress made by the parties in reaching their goal to develop a parenting plan has been stalled. In argument, the Respondent’s submission included that if the parties have been involved in the reunification therapy for over two years without success then there is no point in proceeding to an intensive reunification program. That submission provides no hope for a relationship between the father and the children.

[46] I am not prepared to conclude that there is no hope for a relationship for the father and the children. Michela as recently as a few weeks ago met her father for coffee as part of the reunification therapy. Gianantonio is having visits once per week with his father. However, for the reasons outlined below, I am unable to make the order for intensive family reunification.

Request for Abridgment of Time

[47] It is not necessary for this order to be made as the motion was served and filed in accordance with the Family Law Rules.

Order of Miller J., dated October 26, 2018, and Payment of Accendus Group Fees

[48] The evidence before me indicates that the amount of the outstanding invoice is $10,936.71. The Respondent does not dispute that this is the outstanding amount. She only disputes that she is responsible for paying any portion of it.

[49] I have set out above the provisions of Miller J.’s order. It is clear from reading that order that it is the Respondent who is responsible for payment of the Accendus Group fees as they relate to the Respondent and Michela. The order is equally clear that Miller J. did not order that that Respondent was to pay these fees in relation to the Applicant and Gianantonio.

[50] Neither party appealed Miller J.’s order. I see no reason for me to vary Miller J.’s order. A copy of the outstanding Accendus Group invoice was not included in the materials filed for the motion before me. However, there is evidence that Accendus Group has provided its invoice to the parties. Accordingly, with respect to the outstanding invoice of Accendus Group, the Respondent shall pay within 10 days the portion of the invoice as it relates to the Respondent and Michela. The Applicant is responsible for payment of the remaining portion of the outstanding invoice and he shall also make payment within 10 days.

[51] Miller J.’s order is equally clear that the Respondent shall cooperate with any further recommendations of Ms. Rothecker and Mr. Koval. That portion of the order still in force and the Respondent shall comply with it. The issue of participation intensive family reunification was not before Miller J.

Request for Additional Costs from Motion Before Miller J.

[52] As set out above, Miller J. made a costs order. The Applicant has not established that I would have any jurisdiction to award further costs for a motion when costs of the earlier motion have already been adjudicated. I dismiss the Applicant’s request for additional costs for the motion before Miller J.

Request for Participation in Families Moving Forward (Intensive Family Reunification Therapy)

[53] In Leelaratna v. Leelaratna, 2018 ONSC 5983, Audet J. reviews various cases where it has been held that the court either had or did not have jurisdiction to make therapeutic orders in the context of family law. She also reviews the need to determine whether or not the proposed therapeutic order would constitute treatment such that the consent of the parties and children would be required under the Health Care Consent Act, 1996, S.O., c. 2, Sched. A (“HCCA”).

[54] Neither party disputed that I have jurisdiction to make a therapeutic order. As outlined at para. 45 of Leelaratna, Audet J. concludes that the court has jurisdiction to make a therapeutic order by virtue of s. 28(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, and s. 16(1) and (6) of the Divorce Act, R.S.C., 1985, c.3 (2nd supp.):

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.

[55] I am satisfied that I have jurisdiction to make a therapeutic order.

[56] In order to determine whether or not the proposed intensive family reunification therapy requires the consent of the parties and the children, I must determine whether the person(s) providing the proposed therapy is a health practitioner pursuant to section 10 of the HCCA and whether or not the proposed therapy constitutes “treatment” as defined by s. 2(1) of the HCCA. Neither counsel provided any submissions on this issue.

[57] Section 10(1) of the HCCA requires that a health practitioner who proposes treatment obtain consent prior to administering that treatment.

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.

[58] Treatment is defined in s. 2(1) of by the HCCA as

“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, 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.

[59] As outlined by Audet J. in Leelaratna, at para. 55, health practitioners can include physicians, psychiatrists, psychologists, and psychotherapists. However, social workers may not always be considered health practitioners.

[60] In the case before me, I have minimal evidence as to the nature of the proposed intensive family reunification therapy or who would be providing it. From the evidentiary record before me, I only have the following evidence with respect to the Families Moving Forward program:

a) it has been recommended by Accendus Group;

b) there is an opportunity for participation in the Families Moving Forward over the March Break (i.e. next week), but even if I ordered that the family participate in this proposed therapy, they may not be accepted;

c) there is a further opportunity for participation in the Families Moving Forward program during or around the Easter long weekend, but this could result in the children missing some school if the family was ordered to participate;

d) a one-page costs estimate for the program; and

e) a blank parent intake questionnaire.

[61] Without knowing the specifics of the nature of the clinical work which is contemplated by the proposed therapy, who is providing the proposed therapy, and their qualifications, it is simply impossible for me to determine whether or not the clinicians involved in providing this program are health practitioners and whether or not this proposed therapy is treatment. Without that information, I cannot determine if consent is required.

[62] As Audet J. notes at para. 63 and 64, Families Moving Forward has been found not to constitute “treatment” in E.T. v. L.D., 2017 ONSC 4870 and found to be “treatment” in Barrett v. Huver, 2018 ONSC 2322, 9 R.F.L. (8th) 244. In both of these cases, the court was provided with information about the program. I must make my own determination as to whether or not this program is treatment or not based on the facts of this case before me. As stated above, without having the particulars of the program and who delivers the program, it is impossible for me to make this determination.

Request for 90-Day Black-Out Period/Extended Out-of-Town Vacation/Alternative Relief

[63] Even if I had been satisfied that the proposed therapy did not constitute treatment and therefore did not require the consent of the parties and the children, I would not have made an order for the 90-day black-out period, an out of town vacation or the alternative relief requested at paragraphs 8 and 13 of the Notice of Motion.

[64] Michela is 17 years old and she will be 18 in July. Gianantonio is 15 years old. From the evidentiary record before me, I can determine what their respective views and preferences are with respect to access with their father. Neither of them wish to have access. These views have been consistent and longstanding.

[65] However, I cannot determine from the evidentiary record before me what their views and preferences would be with respect to a 90-day black-out period in which they would reside with their father and have no contact with their mother, or their views and preferences with respect to the possibility of participating in an intensive reunification program in Vermont in July, a very short time before Michela turns 18 years old.

[66] It is not clear to me why, given the ages of the children, neither party requested an Order for the OCL to become involved in this matter. This could have been raised in October 2018 as part of the relief sought by the father when he brought his urgent motion or at the case conference held in December 2018.

[67] Further, had I ordered that the family participate in the Families Moving Forward program, I am of the view that prior to ordering a 90-day black-out period or extended out-of-town vacation, it would be necessary for the court to have a report regarding what transpired during the Families Moving Forward program and whether or not the 90-day black-out period or extended out-of-town vacation were still a viable recommendation and in the best interests of each child. The details of what was being proposed would also need to be included in that report.

Order

[68] After considering the evidence filed by each party, the submissions of counsel and for the reasons outlined above, I make the following Temporary Order:

(a) Within 10 days of the date of this Order, the Respondent shall pay the portion of the outstanding invoice of Accendus Group which relates to fees in relation to the Respondent and Michela. The remaining portion of the outstanding invoice shall be paid by the Applicant and he shall do so within 10 days of the date of this Order.

(b) Any additional fees of Accendus Group shall be shared by the parties as follows: the Applicant shall pay the portion of any fees for services as they relate to the Applicant and/or Gianantonio, and the Respondent shall pay the portion of any fees for services as they relate to the Respondent and/or Michela.

(c) The Applicant’s request for additional costs in relation to the order of Miller J. October 26, 2018 is dismissed.

(d) With the exception of costs for this motion, the balance of the Applicant’s motion is dismissed, without prejudice to the Applicant to bring a motion on proper evidence in compliance with the Practice Direction for Central West.

[69] With respect to costs of the motion before me, if counsel cannot agree on costs, then:

i) Any party seeking costs shall serve and file, by March 25, 2019, written submissions, a bill of costs and any offer to settle which was served. The written submissions shall be no more than three pages and double spaced, exclusive of a bill of costs and offer(s) to settle, if any.

ii) The opposite party shall serve and file, on or before April 2, 2019, responding written submissions of no more than three pages, double spaced, exclusive of a bill of costs and any offers to settle.

iii) There shall be no reply written submissions unless I request same.

iv) If neither party serves and files written submissions seeking costs on or before March 25, 2019, then I shall make an Order that there are no costs for this motion.

Kumaranayake J. Date: March 8, 2019