Court File and Parties

COURT FILE NO.: FS-14-396173

DATE: 20190118

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Arun Malhotra Applicant

– and –

Charlene Henhoeffer Respondent

Brian Ludmer, for the Applicant

Self-Represented

Catherine Bellinger, Patric Senson and Suzanne Stern, for the Office of the Children’s Lawyer

HEARD: January 9, 2019

REASONS ON MOTION

NICHOLSON J.

[1] On October 30, 2018, I released a trial decision that changed the course of teenage life for 13-year-old Bhim Henhoeffer. Unbeknownst to Bhim, his mother had been systematically poisoning his mind against his father and thereby emotionally abusing him for many years. I was not at all surprised to learn that Bhim was shocked by my order that his father was to immediately assume sole custody of him, and that he was to have no contact or communication with his mother, or his older siblings who had already been successfully alienated from the father.

[2] Notwithstanding the best efforts of this court to have the trial decision released in a way that facilitated the child being delivered directly to the father from school, the child had been released early from school on October 30, 2018. The police were required to assist in transporting him to his father from his mother’s residence. The police have become involved on numerous other occasions since that date to return the child to the father’s residence when he has run away. Bhim has also engaged in other rebellious behavior since the trial decision. He had initially refused to sleep, eat, or bathe at his father’s residence. He would leave his father’s home early in the morning and return late at night if at all. He has, with the assistance of friends, vandalized his father’s home and contents of the home, completely trashing his father’s home office work space.

[3] He was refusing to eat any of the food prepared for him by his father and demanded money from his father for takeout food.

[4] He has alleged to the school, neighbours, police and the Children’s Aid Society (“CAS”) that his father has been abusive towards him, and does not have adequate food or bedroom furniture for him. He has attempted to engage the CAS and the police to become involved. Both agencies have investigated and have not verified any of his concerns. The CAS has investigated the concerns and plans to close the file. The father has accommodated Bhim’s requests for bedroom furnishing, buying brand new items.

[5] Since October 30, 2018, the mother admits that Bhim has attended at her home on several occasions. He has also been in communication directly with his grandparents, brother, and sister. Contact with the mother and siblings is in breach of the trial decision. He stays up until 3:00 a.m. using his cell phone to communicate with friends and the maternal family.

[6] Bhim has also refused to attend reconciliation therapy with his father pursuant to my order of October 30, 2018. He has generally refused to submit to his father’s authority.

[7] Initially, Bhim was refusing to attend school or to attend Royal Canadian Air Cadets (“Cadets”). In the past few weeks, he has started to attend school again. He has also recently shown some progress in dealing with a school counsellor.

[8] Bhim has not been alone in his opposition to the trial decision. The mother and the Office of the Children’s Lawyer (“OCL”) have been focused on appealing the trial decision and pursuing a motion to stay. Valuable time, energy, and resources have been directed toward the motion to stay before the Court of Appeal. On December 20, 2018, Miller J.A. dismissed the motion to stay.

[9] Since the trial decision, the mother has failed to “engage and meaningfully participate in therapy to gain insight into her alienating behavior and work towards supporting reconciliation between the father and Bhim.” This was one of the terms I included in the trial decision as a prerequisite to a review of the custody and access provisions.

[10] The father also alleges that the mother has not provided him with the child’s original birth certificate or access to the child’s cell phone plan.

[11] The father has brought this motion today to obtain further orders from the court that he believes are needed to fulfill the purpose and intent of the trial decision. The mother has brought a cross motion requesting some access to the child and an opportunity to be involved in the child’s education. Although she brought her motion as a 14B procedural motion, I have considered her request.

[12] I find that some of the orders requested by the father are in the nature of disclosure with a view to obtaining evidence that the child, the mother, and various other individuals have been in continuous breach of the trial decision.

[13] All parties have agreed, and I therefore hereby order that the police records should be disclosed to all parties as requested in the AF’s motion. The CAS records have already been disclosed voluntarily by the CAS. I will deal separately with disclosure of the cell phone records and the school records below.

[14] The purpose of any other orders I make today will be to refocus everyone on the objective of the final order, that is, the rehabilitation of the relationship between the child and the father. More specific orders are required to allow the father to effectively parent Bhim without interference from the mother, the child himself, and others.

[15] Since the trial decision was released on October 30, 2018, the mother admits to only a few occasions of brief contact with the child. In the materials that the mother has filed at the Court of Appeal and before me, she has clearly displayed a complete lack of appreciation for the counterintuitive message she has given to the child. She has failed to include in any of her affidavit evidence that she has in any way discouraged the rebellious and destructive conduct and disrespectful attitude of Bhim towards his father. Not once did she claim that she has told the child to submit to his father’s custodial authority, that he attend school or Cadets, or that he cooperate with his father in attending counselling in accordance with the court expectations. She has shown to the court and to the child that she is unable to accept the trial decision, and therefore has continued to act in a manner that is contrary to the child’s best interest.

[16] Rather than admonishing Bhim for his defiant, rebellious, and self-destructive conduct and encouraging him to comply with the court order, she used his behavioral meltdown as evidence in support of her unsuccessful motion to stay. Surprisingly, the OCL supported the mother in this litigation strategy.

[17] In light of the messaging presented to Bhim, there is little wonder that he has struggled so tremendously to accept the transition to his father’s care and custody. To her credit, the mother is now (in her submissions for this motion) articulating a desire to facilitate a smooth transition for the child to get him back on track with school and Cadets and to support the current court order for this part of his life. The child needs his mother to not only say these things, but also to mean what she says.

[18] Bhim needs all of the adults in his life on the same page, sending the same message to him. As Mr. Ludmer for the father said, “Everyone needs to have their oars in the water and be paddling in the same direction.” To this point, the mother has not yet put her oar in the water let alone started paddling. I am encouraged, however, by her submissions on this motion. She appears to have taken the oar in hand.

[19] At this motion, the mother suggested that the child not be punished (as with a stick), but rather, be offered a “carrot” as enticement. I agree with this principle. However, to properly apply the principle, the carrot has to be dangled in front of Bhim in order to keep him moving forward toward the goal. The incentive will be a reward for progress. The reward for Bhim proposed by the mother is access between them. I agree that this should be the incentive placed in front of the child. Re-establishing a connection with the mother after he makes progress towards the goal of reconciling his relationship with his father is an appropriate reward.

[20] The progress Bhim is making toward the goal of reconciliation with his father will be measured by the court based upon an assessment of compliance by everyone with the trial decision and the further orders contained herein. Upon a review by the court of the therapeutic evidence submitted by the parties, it will be determined if Bhim should be rewarded with access to his mother. Premature contact and communication with the mother will be counterproductive to the goal of reconciliation with the father based on my trial findings about the mother. The relationship with the mother cannot be re-established until she has shown that she appreciates the value of Bhim’s relationship with his father and will not sabotage any progress being made in rebuilding that relationship. Bhim and the father must also show progress in reconciliation therapy before the court can consider a review of the no contact order.

[21] The mother and the OCL have raised questions as to whether this court can enforce orders made against the child and non-parties. I would encourage everyone concerned to focus on nothing other than complying with the orders and encouraging all others to do so for the purpose of the future review.

[22] I will not extend the six-month review period at this time. I do this as an incentive for Bhim. If he and others immediately set to work on the goals and objectives clearly outlined in the trial decision and this order, perhaps enough progress will be made to allow me to review the terms of the no contact order in four months’ time. As such, I will consider a review of the custody and access provisions of the trial decision at any point after April 30, 2019 as long as the terms of the trial decision and this order have been met.

[23] For these reasons I make the following orders in addition to the trial decision:

1. The Respondent Mother (“RM”) shall immediately provide her parents and siblings with a copy of the October 30, 2018 trial decision and this decision.

2. The RM’s parents and siblings shall have no contact or communication with Bhim until further order of this court.

3. Within 14 days the RM will disclose to the Applicant Father (“AF”) full contact details for the RM’s parents and siblings, as well as Vir and Natasha.

4. Bhim shall comply with the AF’s directions and parental authority in all matters including, but not limited to, school attendance and completion of school work, Cadets attendance, conduct within the home, cooperation with food, curfew times, communications with third parties, provisions of full contact information for those with whom he is associating, permission for sleeping outside of the home with friends, and in such an event providing full contact information for the supervising parents of the friends, and obtaining consent from the AF to have friends over at his home.

5. Neither Bhim nor any of his friends or acquaintances shall intentionally damage any property or possessions of the AF.

6. Neither party nor Bhim shall speak in a derogatory manner about either parent or Bhim. Each will communicate about and to the others with respect.

7. The AF will use the weekly updates required pursuant to the trial decision as information regarding Bhim only. He will not use it as a forum for complaining about the RM’s conduct or these proceedings.

8. The RM will immediately deliver to the AF Bhim’s original birth certificate. If she has not done so within 14 days hereof, the AF may obtain a replacement certificate on his own without the need for the RM’s consent.

9. The RM shall immediately relinquish Bhim’s phone plan and all associated information to allow the AF to take over full control of any and all of Bhim’s cell phone usage.

10. Bhim shall fully cooperate in all cell phone and other electronic usage rules established by the AF and will use only the cell phone provided by the AF.

11. If Marcie Goldhar and Carol Jane Parker are not available to facilitate the therapy sessions for the AF and Bhim, the AF has full discretion to select an alternate therapist pursuant to recommendations from Marcy Goldhar, Carol Jane Parker, or Joanna Siedel. Said therapist must then be approved by me via 14B motion, including the CV of the proposed therapist.

12. Bhim shall accept and attend the court ordered therapist and shall not speak in a derogatory manner regarding said therapist to any third party.

13. If the AF chooses to pursue an acute-care psycho-educational/therapeutic program such as the Family Bridges treatment program for the alternate therapy to be approved by me, he shall commit to paying the cost of said therapy up front and the division of the cost for program between the parties will ultimately be determined by me at the review of this matter.

14. The RM will within 14 days provide the AF with the name and CV for the therapist she has chosen to provide to her the services required by the trial decision and the AF is permitted to forward the trial decision to said therapist.

15. The RM shall fully cooperate with the court-appointed reconciliation therapist working with the AF and Bhim to the extent recommended by said therapist.

[24] With regard to the release of the school and cell phone records of the child, it is necessary for me to balance the right of the AF to disclosure with the privacy interests of the child. For this reason I make the following orders:

1. All of the cell phone records relating to any cell phone used by Bhim shall be produced within 30 days by the RM and delivered to me in a sealed envelope. Included in the sealed envelope from the RM will be the identity associated with every telephone number included in the cell phone records, i.e. everyone with whom the child was in communication with either by text message, phone call, or email. If she is unable to identify a number, I will release that number to the AF and allow him to investigate the identity.

2. Within 30 days the Toronto District School Board shall release to me all school records concerning Bhim, including his files with the school guidance counsellor end of the school social worker involved by the school.

[25] All other orders requested by AF and RM are dismissed. In particular, with regard to the request that I meet with Bhim, I do not believe he will benefit from hearing directly from me regarding the trial decision or this decision until he has meaningfully engaged in reconciliation counselling and begin to appreciate, through that therapeutic process, that a relationship with his father is in his best interest.

[26] Costs are reserved to the review of this matter.

The Honourable Mr. Justice P. W. Nicholson

Released: January 18, 2019