Court File and Parties

Court File No.: FC-12-42004-00 Superior Court of Justice Endorsement Citation: R.N v. A.N., 2019 ONSC 163

Applicant(s): R.N. Counsel: Alnaz I. Jiwa

Respondent(s): A.N. Counsel: Gary S. Joseph and Amit S. Dror Counsel: Sheila Bruce, Office of the Children’s Lawyer

Date: January 4, 2019

Endorsement

[1] In this bifurcated, high conflict, six day trial involving the parenting of three children, the applicant (“the mother”) and the respondent (“the father”) have each claimed custody. The parties separated in 2012: the trial began on May 30, 2018 and concluded on November 20, 2018. The children (all boys) are now 19 (SN), 14 (KN) and 12 (RN) years old. They have lived with their mother since their parents separated. None of them is currently exercising access with their father.

[2] SN (the oldest son) last exercised access with his father in early 2013.

[3] RN (the youngest son) last exercised access with his father at the end of June 2016.

[4] KN (the middle son) last exercised access on October 28, 2018 during an adjournment of the trial. He is a special needs child.

[5] The father claims that the mother and her new partner have engaged in behaviour intended to alienate the children from him. The mother has denied this allegation: her position is that she has always wanted the children to have a good relationship with their father. Ms. Bruce, the lawyer appointed to represent the children by the Office of the Children’s Lawyer (“OCL”), but now only representing KN and RN because SN is 19 years old, led evidence through a clinical investigator that both parents involved the children in this proceeding and, in different ways, failed to comply with access and communication Orders made.

[6] Both parents testified that they support an outcome that involves family reunification therapy and counselling, the object of which would be to re-establish a healthy, meaningful relationship between the children and their father. But they dispute what that should involve and who should pay for it. The mother has proposed that no access should be awarded to the father until he undertakes therapy, counselling or parenting courses, including anger management, and that once a therapist feels that the children should become involved in the process then she would make her best efforts to co-ordinate and cooperate in having the children attend for therapy or counselling. The father has proposed reunification therapy, without pre-conditions, and is aligned with the position of the OCL.

[7] Ms. Bruce emphasized that the children needed to have a relationship with both parents, submitting that “there needs to be therapeutic intervention to assist [the children]”. She also submitted that “[b]oth parents could benefit from the assistance of professionals in guiding them through some of the actions which have affected the children negatively…”

[8] Mr. Joseph and Ms. Bruce suggested the names of three highly regarded professionals whose expertise involves reunification therapy. Mr. Jiwa did not challenge any of the suggested names. He confirmed to the court that his client didn’t disagree with the principle of reunification therapy.

[9] No party has provided the Court with terms of the proposed therapy.

[10] The events leading up to this trial have spanned six years, numerous court Orders, six days of trial and spirited efforts by each party to impugn the credibility of the other party and the mother’s new partner (now husband). It is critical to the best interests of KN and RN that steps be taken forthwith to start the reunification process pending delivery of more fulsome written reasons. In making the following Order, I am mindful of the decision of this court in Leelaratna v. Leelaratna, 2018 ONSC 5983 and the factors and authorities referenced in that decision relevant to making a therapeutic Order and whether any such Order would be appropriate in the circumstances of this case. The parents and the OCL, as do I, agree that such an Order is needed and that it is appropriate for this family.

[11] The following is ordered:

(a) the children shall continue to reside with their mother;

(b) subject to (l) below, no Order as to access shall be made at this time;

(c) the mother and father shall facilitate the participation of KN and RN in reunification therapy, the object of which will be to re-establish a meaningful relationship between the children and their father;

(d) by no later than January 16, 2019 the father shall provide to the mother and OCL the qualifications, rates and details as to the availability of the three therapists proposed by him and the OCL, and his choice of therapist. The mother shall have seven days from her receipt of the father’s information (as above) to consider whether she agrees with his choice. If the mother fails to respond, then the father’s choice of therapist shall prevail: if she disagrees with the father’s choice, or if the parents cannot agree on either of the two other suggested therapists by the deadline for the mother’s response, then the OCL shall select the therapist, such decision to be made by no later than January 28, 2019. This selection shall be binding until further Order;

(e) the parents shall sign the therapist’s agreement. Each parent shall pay fifty per cent (50%) of any initial financial retainer required by the therapist within ten (10) days of the date that the therapist sends his/her retainer to them. Until further Order of the court, each of the parents shall pay equally any further retainer as the therapist may require within two weeks of the date of any such request;

(f) the father shall send a signed copy of the agreement with the therapist to the OCL immediately after the parties have signed it;

(g) each parent shall comply with all of the conditions of the therapist’s agreement;

(h) until further Order the mother shall be responsible for transporting the children to and from their appointments with the therapist;

(i) the therapy process shall be fully open in that the therapist shall send monthly reports to me, starting (depending on the commencement date of the therapy) on the last day of February 2019 and on the last day of each succeeding month until therapy has concluded or further Order of the court. In the event that therapy is delayed for any reason not related to the therapist’s schedule or other professional commitments or in the event that any of the terms of this Order are breached the therapist shall forthwith report the breach or breaches to me. The therapist shall send a copy of his/her report to each parent and to the OCL;

(j) in the event that a parent fails to pay his or her costs of the therapist’s further retainer, the other parent may make that payment on their behalf, which payment shall be fully recoverable when the costs of these proceedings are finally determined;

(k) neither parent shall take either of KN or RN to any other therapist (which shall include counsellor, psychologist or psychiatrist) without the prior written approval of the therapist and neither parent shall allow either child to engage in any other therapeutic service unless directed by the therapist;

(l) the involvement of the therapist shall continue until further Order or until the therapist deems that it is not in the best interests of either child, or both children, to continue with the process in which event the therapist shall immediately report to this Court;

(m) the therapist may interview other professionals or persons deemed necessary. The parents shall sign any releases that may be requested by the therapist within three (3) days of the request being made whether the request is made in writing or otherwise;

(n) the therapist shall have the authority to determine and recommend to the parents a timeline for access by either or both of KN and RN with their father, including telephone and other electronic contact. In the event that the parents are unable to agree with the recommendations made, then the therapist shall report to this Court the recommendations and the reasons for them;

(o) the mother and the father shall refrain from scheduling any activities or lessons for KN and RN which would interfere with the therapist’s scheduled times with either child. It is understood that in order to facilitate the therapist’s schedule, either child may have to miss school or other organized activity to attend reunification therapy;

(p) neither parent shall discuss any aspect of the reunification therapy process with either of the children unless first discussed with and approved by, or directed to do so by, the therapist. Without limiting its generality, such information should be restricted to the purpose of the therapy, the therapeutic process, confidentiality, and the role of the therapist;

(q) the therapist shall have the authority to engage additional professionals as he or she deems necessary to assist in this process and any such professional’s fees shall be paid by the therapist out of their financial retainer. The therapist may recommend other persons to facilitate and assist in implementing a parenting schedule for either child or for both of the children;

(r) neither the mother, the father nor any other person who participates in the therapeutic reintegration process shall record any aspect of the reunification therapy unless that has been specifically agreed in writing, and in advance, by the therapist;

(s) pending release of the trial decision in this matter, and in the event of any disagreement or confusion with respect to the terms of this Order, either parent and the OCL may arrange a teleconference through the judicial assistant (Meghan.Billings@ontario.ca) for further directions or clarification if needed.

[12] A copy of this endorsement and the issued Order shall be provided to the therapist along with a copy of the Trial Record by the father.

Justice David A. Jarvis