Court File and Parties

Court File No.: FC-12-42004-00 Date: 2020-06-25 Ontario Superior Court of Justice

Between: R.N., Applicant – and – A.N., Respondent

Counsel: Alnaz I. Jiwa, Counsel for the Applicant Hugh Evans, Counsel for the Respondent Sheila Bruce, Office of the Children’s Lawyer

Heard: In Writing

Judge: Jarvis J.

Ruling on Motion

Background to Motion

[1] On May 16, 2018 this Court bifurcated the parenting and financial issues between the parties and directed that a trial on the parenting issues proceed: directions dealing with the financial issues would be addressed at the conclusion of the parenting-issue trial. That proceeded on May 30, 2018 and, due to court availability and lawyers’ schedules, was not completed until November 20, 2018.

[2] The proceedings between the parties have been, and remain, high conflict. There were six days of trial on the parenting issue (three days were scheduled). Two of the parties’ three children are involved and are represented by Ms. Bruce (KN born June 10, 2004 and RN born July 9, 2007). At the conclusion of the evidence and during closing submissions, the parties agreed to participate in family reunification therapy and counselling. Directions were given and a detailed Order made. A narrative of the events leading to that Order was set out in my endorsement dated January 4, 2019. [1]

[3] Paragraph 11 of that endorsement provided as follows:

(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.

[4] Neither party appealed the Order. Neither party sought further direction or clarification of it in the event of any disagreement or confusion with its terms.

[5] The mother has now brought a motion pursuant to an Order that I made on January 9, 2020 permitting either party to seek directions if the agreement required by the reunification therapist was not signed by January 31, 2020. That Order was never appealed nor has clarification of its terms ever been sought. The mother asks for a final Order on the parenting issues and that any access with the father be left for the children to decide. The father has not seen RN since June 2016 and KN since October 2018. The motion was served on the father and Ms. Bruce, the children’s representative. The mother’s affidavit details the steps that she has taken to comply with the Order for family reunification therapy and the father’s failure or refusal to comply with the Order and to co-operate with the therapist. By way of background, the therapist had been recommended by Ms. Bruce in her closing trial submissions: father’s counsel at the time told the Court that his client had no objection to that recommendation. Nor did the mother.

[6] On January 31, 2020 the therapist completed and forwarded to the parties and their counsel a report detailing her involvement or, rather, her non-involvement with the family despite the best efforts of her offices and the mother. It is noted that the report was forwarded to the father by email as he and his former solicitors of record (who had acted for him when the parenting-issue trial was heard) have since parted ways. The mother referred to this report in the affidavit supporting her motion and later filed an affidavit to which the report was appended.

[7] The father opposes the relief sought. He has delivered an affidavit purporting to explain his non-involvement with the therapist’s offices. Ms. Bruce advised that she would not be filing anything on behalf of her clients.

[8] There is a considerable history for over a year after the trial evidence was concluded of this Court monitoring the process associated with the selection and retaining of the therapist and the parties’ interactions with the therapist's offices.

Post-trial Events

[9] The following events as reflected in the therapist’s report and the Court Record are pertinent (for reference purposes those entries from the therapist’s report shall be noted as “Report” and those from the court as “Court Endorsement Record” and italicized):

January 14, 2019. (Report) [The father], ‘walked in’ to the clinic inquiring about ‘alienation therapy’ for his children. Verbal information was provided by Ms. Maria Christopoulos, and followed up with detailed written information about our reunification protocols and process, along with rates and outline/summary of the process. [The father] requested information about qualifications, rates and availability, which were all provided to him promptly.

January 17, 2019. (Report) Email received from [the mother] requesting a phone call back for information, which was provided promptly by Ms. Christopoulos.

January 18, 2019. (Report) Phone consultation between Ms. Christopoulos and [the mother]. General information about procedure, fees, documentation and availability was provided to [the mother].

February 28, 2019. (Court Endorsement Record) A teleconference was held by the Court with counsel and the following endorsement made: The parties experienced some difficulty in getting timely responses from the therapists (not named in my endorsement but whose names were mentioned at the end of the evidence on the parenting issues). It is my view that Dr. Dawn DeCunha should undertake the therapist (sic) as contemplated by my 4 January 2019 endorsement. Paragraph 11(l) of my Order made then shall be amended by setting the start date for the monthly report to 31 March 2019 and on the last day of each month thereafter. All other terms of my endorsement shall remain in full force and effect. I am concerned about delay involving the non-parenting issues, specifically the financial issues. Every effort should be made to get the case trial-ready for the May sittings of the Court. Timelines for the delivery of expert opinion reports may need to be abrogated. Consideration must be given too to FLR 1(7.2)(k) if experts will be involved. A SC should be held in April – arrangements to be made through the TC’s office. Ms. Bruce does not need to participate in the non-parenting conferences or issues but should be made aware when they are proceeding.

March 8, 2019. (Report) Email from [the mother], providing Justice Jarvis’ February 27, 2019 Endorsement. It is informed that this two-page document is Justice Jarvis’ handwritten endorsement. No information about the names of the Applicant or Respondent were on this document and without this information/context, we were still unaware at this time that the [mother’s surname] matter was related to the [father’s surname] matter.

April 11, 2019. (Court Endorsement Record) A further teleconference was held with counsel by the Court. [The mother] had changed counsel for the purposes of dealing with the financial matters but Mr. Jiwa remained as her counsel for the parenting issues. The following endorsement was made: Teleconference with counsel. [The mother] has changed csl. He is trial ready: [The father] may be pursuing his own expert valuation/income analysis evidence. In any event a TSC would need to be held and there is no time between now and the start of the trial sittings to schedule that. After discussion with counsel, OTG as follows: (1) Trial of the non-parenting issues is adjourned to November 2019 trial sittings peremptory to both parties; (2) SC to proceed on date to be arranged by counsel with the Trial Coordinator.

June 27, 2019. (Court Endorsement Record) A further teleconference with counsel was held. A further teleconference was scheduled to proceed on July 23, 2019 dealing with the parenting issues. With respect to the non-parenting issues counsel were to advise the judicial assistant as to those dates between August 1, 2019 and October 11, 2019 when they would be available for a Settlement Conference with the Case Management Judge (McGee J.). It was indicated that the goal was to have the non-parenting issues made trial-ready for the November 2019 sittings of the Court.

July 26, 2019. (Court Endorsement Record) A teleconference was held with counsel for the mother, one of the trial counsel for the father and Ms. Bruce. The following endorsement was made: Counsel for RF advises that the agreed reunification therapist has not become involved to date, the reason or reasons for which the parties dispute. Counsel for OCL (Ms. Bruce) to contact therapist to ascertain whether she remains prepared to become involved, what are the timelines, etc. and so advise counsel and the court. If the therapist is prepared to become involved and there are no other issues in this regard, then they shall confirm that in writing and copy the court. If the therapist cannot for any reason be involved then the parties should consider the alternate candidates suggested and confirm that to the court too. If, still, there is no agreement then counsel on the parenting issues shall forthwith arrange a teleconference with me through the judicial assistant (M. Billings). If the therapy proceeds the terms of my Order made 4 January 2019, para 11 shall apply with such modifications as may be needed given the passage of time since it was issued. A SC shall proceed on the non-parenting issues before McGee J. on 15 October 2019 (2:15 p.m.). All SC Rules to be followed. Counsel should attend court in morning to ascertain whether there is any opportunity to start the SC at the 11:30 a.m. tier in the event of a cancellation by another matter previously scheduled for that time. Counsel should canvas that possibility with the trial office or Justice McGee’s judicial assistant (Ms. Suzana, 905-853-4887) on 11 October 2019.

From the Report Also on July 26 the therapist’s report indicated receipt of an email from Ms. Bruce in which the following was noted by the therapist: Ms. Bruce requested the status of the reunification therapy for this family. Ms. Bruce was informed that there was no open file for the …family. Both [the father and the mother] had independently contacted our office requesting general information about the reunification process. Our office was unaware that [the father’s surname] and [the mother’s surname] matter[s] were related, and no specific request for services were made by anyone, at the time of inquiry. Ms. Bruce was advised that reunification therapy could commence in September 2019. The parties were asked to contact Maria Christopoulos directly for an orientation and information sharing session. This initial session provides and gathers information, required documents are signed, the process explained in detail, opportunity to ask questions is provided and next steps explained. The initial session ensures ‘informed consent’, as mandated by regulated health care providers.

July 29, 2019. (Report) [The father] called to inform that the CAS will be contacting us and it was not necessary for him to provide any more information.

August 7, 2019. (Report) Phone conversation between Maria Christopoulos and Sheila Bruce, clarifying the initial confusion about this family.

August 8, 2019. (Report) [The father] “walked in” to the office wanting a meeting with Maria Christopoulos. Ms. Donna Parker, our administrative support, informed [the father] that Maria Christopoulos was not in the office. A phone consultation was scheduled for August 14, 2019.

August 13, 2019. (Report) Maria Christopoulos left a voicemail message for [the father] confirming the scheduled phone consultation at 4:00 PM the following day.

August 14, 2019. (Report) Phone consultation with [the father] by Ms. Maria Christopoulos [The father] expressed a number of concerns about the reunification process, and clarification or further explanation was provided as needed. [The father] was asked to schedule an in-person meeting to review our protocols, become informed about the process, and sign required documents.

September 5, 2019. (Report) Ms. Parker scheduled a meeting between [the father] and Maria Christopoulos on Tuesday, September 17 at 4:30 PM.

September 10, 2019. (Report) Detailed written information about the reunification process, and the retainer agreement was forwarded via secure email to the parties for review prior to their scheduled meetings.

September 13, 2019. (Report) Email sent to [the father] confirming his appointment with Maria Christopoulos, scheduled for September 17, 2019 at 4:30 PM.

September 13, 2019. (Report) Email received from [the father], informing he will not attend the scheduled meeting on September 17, 2019 at 4:30 PM. No further information was provided.

September 17, 2019. (Report) Email sent by Maria Christopoulos to [the father] informing that several attempts have been made to reschedule the appointment he cancelled, and to contact our office to make an appointment to come in for the required orientation meeting.

September 18, 2019. (Report) Ms. Donna Parker left a message for [the father] to please rebook the appointment he cancelled.

September 19, 2019. (Report) Ms. Donna Parker left a second message for [the father] to rebook the appointment he cancelled. No response from [the father].

September 23, 2019. (Report) Ms. Donna Parker left a third message with [the father] to please reschedule the appointment he cancelled. There was no response from [the father].

September 24, 2019. (Report) A meeting was held between Maria Christopoulos and [the mother]. Procedures were reviewed and some initial information about the children gathered. [The mother] signed all requested documents, provided her informed consent and made retainer arrangements. She was ready to proceed to the next step in reunification.

September 30, 2019. (Report) Email sent by Maria Christopoulos to [the father] to reschedule the appointment he cancelled on September 17th. There was still no response from [the father].

October 15, 2019. (Court Endorsement Record) A Settlement Conference proceeded before McGee J. and the following endorsement made: Conference began with counsel only, with the expectation that it would move forward with the parties jointly or in caucus. However, I was informed by court security that there was an altercation in the waiting area that may have involved extended family members who had come to support each of the parties. I determined that the conference needed to be closed, but first take the opportunity to have the parties, and their support people who remained present to attend in the courtroom, on the record. I have expressed a hope that [the mother] and [the father] can still find a resolution that brings peace to their sons and an opportunity to recover from this difficult period. I challenged them both to take the higher road towards a better future. Motions may be brought on 20 days’ notice. TSC to be booked through the Trial Coordinator. If further directions are needed; counsel may schedule a telephone conference through the judicial assistant, to be confirmed by a form 14C, two days in advance, that sets out the issues to be canvassed.

Later, on October 15, 2019, the therapist reported the following: A letter was sent by Maria Christopoulos, addressed to [the father]. Maria Christopoulos informed [the father] that we had made multiple attempts to schedule an appointment with him and that if he did not call and schedule an appointment in 30 days, we will close our file.

October 16, 2019. (Report) Justice Jarvis’ January 4, 2019 Endorsement received and reviewed.

October 21, 2019. (Report) Email sent to [the father] by Ms. Parker requesting confirmation of receipt of correspondence (dated October 15, 2019) sent via secure email on October 17, 2019.

October 22, 2019. (Report) Ms. Parker left a telephone message for [the father] to please confirm receipt of email sent via secure email on October 17, 2019.

November 13, 2019. (Court Endorsement Record) Bennett J. granted the father’s counsel an Order discharging them as his solicitors of record.

November 29, 2019. (Report) Consultation Note signed by both Dr. DeCunha and Maria Christopoulos addressed to Mr. Jiwa and copied to [the father] and [the mother]. This note informs of the dozens of phone calls and email messages sent to and replied to [the father] attempting to schedule the required meeting with Maria Christopoulos. It was informed that if [the father] did not respond to our previous letter dated October 15, 2019, we will close our file.

January 9, 2020. (Court Endorsement Record) A scheduling conference was held on January 9, 2020. Both counsel for the mother appeared as did the father and Ms. Bruce for the OCL. The following endorsement and Order were made: This matter was addressed today, not on a conference event but rather pursuant to my directions to the parties for a status update dealing with reunification therapy and the o/s financial issues. [The father] filed a 7 January 2020 affidavit which, although it was before the court, was not reviewed and is procedurally irregular. My concerns are the lack of progress in this case and the need to bring the o/s issues to a conclusion more expeditiously than has been the case to date. The AM has indicated that she will undertake payment of any reunification therapy. The following is ordered: (1) The parties shall forthwith proceed with the reunification therapy ordered on 4 January 2019; (2) Dr. DeCunha shall be the therapist; (3) The parties shall fully comply with paras 11(c), (g)-(i) and (k) to (r) of my endorsement made on 4 January 2019 with the exception of (j) which is dealt with below; (4) The AM shall pay Dr. De Cunha’s retainer. This shall be taken into account when determining the final costs of these proceedings with a credit to the AM as may be appropriate. In the event that a further professional service may be required by Dr. De Cunha (see para 11(q) of the 4 January 2019 endorsement) and if the parties cannot agree on sharing that cost, a motion may be brought to my attention by 14B on 10 days notice to the other party; (5) The RF shall engage new counsel by 31 January 2020. He is not ordered to do so but, after that date the AM may schedule a TSC before McGee J. on the financial issues; (6) The AM may file an affidavit in response to the RF’s affidavit sworn 7 January 2020, if so advised. It is expected that the parties will sign the reunification therapists’ agreement by 31 January 2020. If that is not done, either party may move by 14B motion before me for further direction on 10 days notice. To be perfectly clear, I expect that to be done forthwith. The date for the therapists’ submissions or a first report as per para 11(i) of my 4 January 2019 endorsement shall be changed to the last day of February 2020. Costs of today are reserved. NB. All parenting issue documents should be served by email on the AM to MR. Jiwa. Service by email on AF is permitted.

January 13, 2020. (Report) [The father] “dropped in” to the office asking to speak with Dr. DeCunha, who was not present in the office. He insisted on showing Ms. Parker Justice Jarvis’ January 9, 2020 Endorsement that “therapy will be provided by Dr. DeCunha.” He informed Ms. Parker that he is self-represented. [The father] informed Ms. Parker that he required a personal call or email from Dr. DeCunha specifically, as per Justice Jarvis’ Order. He would not initiate the process otherwise.

January 14, 2020. (Report) Ms. Parker reached out to [the father] to book his orientation appointment with Maria Christopoulos. He would not schedule the orientation and wanted to know why he did not get a call back from Dr. DeCunha as he had asked for yesterday. Ms. Parker advised [the father] that there had been no opportunity for Dr. DeCunha to call him and that the best way to expedite the process was to book an orientation meeting directly with Maria Christopoulos, which is our required protocol. [The father] requested of Ms. Parker that ‘all of this be put in writing’ and sent to him via email. Specifically, he wanted an explanation from us about our protocol and why he was required to see Maria Christopoulos first. Ms. Parker explained that this was an orientation and information gathering session and not therapy. There was no violation of Justice Jarvis’ Order. [The father] again asked why he had not received a return phone call back from Dr. DeCunha. Ms. Parker again advised him about her availability and [the father] stated that he was willing to return to the office ‘right now’ and “speak to her on the spot or wait on a call or email” from Dr. DeCunha. Ms. Parker reiterated that Dr. DeCunha was not in the office, and that there had not been opportunity and that typically, all meetings, consultations and sessions need to be scheduled ahead of time. With a commitment for Dr. DeCunha to call him personally at the first opportunity, [the father] made a tentative appointment the following week for his orientation meeting with Maria Christopoulos. It is informed that our administrative staff, Ms. Donna Parker, expressed significant discomfort with [the father’s] style of engagement with her, on this and other occasions.

January 16, 2020. (Report) [The mother] contacted the clinic with an urgent request for Dr. DeCunha to call her back. Maria Christopoulos returned this call.

January 17, 2020. (Report) Dr. DeCunha made a personal phone call to [the father], who did not answer his phone. A message to left for him, inviting him to please follow our protocol, and book an appointment directly with Maria Christopoulos. It was important that he understand the process, sign required documentation, and become fully informed about the process. [The father] was informed that if he still wanted a meeting with me, the typical protocol for a meeting or conversation with any therapist would involve calling and requesting an appointment to be scheduled at a mutually convenient time. Dropping in unexpectedly when other patients are scheduled, would not help him get his ‘in this moment’ needs met. Dr. DeCunha contacted Mr. Jiwa to inform that we are unable to proceed in an orderly manner with [the father]. He was noncompliant with our established procedures. Mr. Jiwa was informed that our process requires [the father] to be fully informed about the reunification process. Mr. Jiwa informed that he will send [the father] an email requesting that he keep his scheduled appointment on January 21st with Maria Christopoulos.

January 20, 2020. (Report) [The father], once again, unexpectedly and without an appointment “dropped in” at about 4:10 PM. He expressed concern to a staff member that we had not confirmed the appointment for the following day, that he cannot keep the appointment, and needed to change the scheduled appointment. Maria Christopoulos was advised, who accommodated his request to reschedule the orientation meeting.

January 27, 2020. (Report) [The father] attended his initial orientation meeting with Maria Christopoulos. Documents received: Justice Jarvis’ Endorsement dated January 4, 2019 and January 9, 2020. It is noted that a copy of trial record was never received in this office. According to Justice Jarvis’ Order, this was [the father’s] responsibility. As part of our record keeping and practice procedures, clients are provided with detailed information about informed consent. [The father] changed parts of our standard ‘informed consent documentation’, pertaining to fees. He initialed the changes he made, and then signed/acknowledged ‘informed consent’. [The father] refused to sign the required retainer agreement. [The father] expressed concern about the “legalities” of this matter. [The father] was most dissatisfied when asked to sign the same retainer agreement, for consistency, signed by [the mother] months earlier, in September 2019. There had been changes to the financial agreement between the parties since [the mother’s] initial meeting with us and [the father] wanted these changes reflected in an updated retainer agreement. Dissatisfied with the dated retainer agreement, [the father] refused to sign our standard ‘consent to release information’ that facilitates communication with all parties in this matter. Justice Jarvis’ Order allows us to communicate without [the father’s] written consent to communicate, and without placing ourselves at risk. During the meeting Maria Christopoulos agreed to change the retainer to reflect the changes in the fee structure, to [the father’s] satisfaction. Both [the father and the mother] would be provided with an updated retainer to sign. Our office administrator, Ms. Donna Parker was asked to make changes to update the agreement on the same day, to avoid further delays. She stayed after hours to make the required changes, so that [the father] could come in the following day, on January 28, 2020 sign the updated retainer, as agreed. To ensure that the discussed changes would be satisfactory to him, Ms. Parker sent [the father] a PDF copy of the retainer ahead of time, so that he could review the requested changes, and there would be no further delays. [The father] agreed to come in and sign the document between 9:30 AM and 4:30 PM the following day, on January 28. [The father] was briefly introduced to Dr. DeCunha at the end of his meeting with Maria Christopoulos on January 27th, in passing in the hallway.

January 28, 2020. (Report) Email communication from [the father] addressed to Dr. DeCunha and other recipients. [The father] sent a detailed email (at 10:35 AM) outlining all the problems with the previous retainer agreement and the changes he wanted to see. Ms. Christopoulos agreed to change the date and the new financial structure, and to ask [the mother] to sign the updated agreement. [The father] also wanted to make changes to our standard clinic forms, providing information to all clients so that they can make ‘informed’ decisions, which is a mandate for all regulated health care providers. Both [the mother and the father] have been provided with detailed information about our reunification protocols. It is explained that we work as a team, depending on the circumstances of the family. Specifically, [the father] wanted our standard clinic form (appended) changed from “Dr. Dawn DeCunha and Associates”, to “Dr. Dawn DeCunha” only, as providing therapy to him. [The father] seemed to fixate on Justice Jarvis’ wording that “Dr. DeCunha will provide therapy”. It was explained to [the father] by both Ms. Parker and Ms. Christopoulos, that we were in the initial stages of making an agreement, which would be followed by a period of assessment, and then the therapeutic reunification portion would be initiated. We did not make this change in the updated retainer. [The father] expressed significant dissatisfaction with his meeting with Maria Christopoulos, reporting that she was argumentative, confrontational, and unprofessional. He reported feeling “intimidated by Ms. Christopoulos”. A copy of his email dated January 28, 2020 is appended. Ms. Parker was instructed to provide [the father] with a printed copy of the updated retainer agreement to sign when he came into the office to sign January 28, 2020. At the end of the day, after 4 PM, Ms. Parker advised Dr. DeCunha, who was between appointments, that [the father] was present but refused to sign the updated retainer agreement. Ms. Parker informed that she was very uncomfortable engaging with [the father], and requested that I address [the father’s] refusal to sign. The reception area was full of children and their parents during this time and when the office cleared, Dr. DeCunha approached [the father] and informed him that the retainer had been updated and in order to move forward, he needed to sign the agreement. [The father] ignored the information provide and asked instead if the email he sent earlier in the day had been read. Dr. DeCunha indicated that it was received, glanced at, but not reviewed. [The father] wanted to have a conversation about Ms. Christopoulos’s unprofessional conduct first, right then and there. When informed that it was not possible, he demanded to know, “why not?” [The father] was informed that my time was already scheduled, weeks ago, for another patient and other tasks needed attention in that immediate moment. [The father] persisted and was informed that if he wanted to proceed, that he would have to sign the agreement and that if he did not, we would remain compliant with Justice Jarvis’ Order, and inform the Court that the retainer agreement was not signed. In response to this information, [The father] asked, “Is that a threat?” Three times he was informed that nothing could proceed until he signed the agreement, and that the Court would be informed of outcome, and three times he responded, “Is that a threat?” Eventually, [the father] was asked directly “Are you going to sign or not?” and he stated, “No, I’m not going to sign.” Dr. DeCunha said “fine”, gathered up the unsigned document and file and left the reception area.

[10] The therapist concluded her report to the Court with the following: This summarizes our encounters with [the father] and attempts to provide him with court ordered services. It is informed that in August 2019 we were first contacted by Ms. Bruce, OCL, requesting assistance with this reunification. Within weeks of Ms. Bruce’s initial referral, [the mother] called, scheduled an appointment, came in promptly, signed all requested documents, attended her initial orientation and information meeting with Maria Christopoulos, made payment for the time spent, and has remained compliant and cooperative with all our requests since then. In contrast, six months later and dozens of attempts to have [the father] cooperate with our procedures have been unsuccessful. Based on his emails and other communications with us, [the father] seems to find our work entirely unacceptable and substandard. He finds our staff ‘intimidating and unprofessional’. Regarding intimidating behaviour, it is informed that Ms. Parker reported to us that when she was making changes to the retainer agreement (January 27th), [the father] ‘rushed behind her desk’, after we left, to observes the changes she was making on the computer. Ms. Parker was uncomfortable asking him to please step back and leave her private area behind the desk, designed to provide a barrier. It was most inappropriate of [the father] to enter into her personal space and stand over her shoulder, instructing her while she worked. Ms. Parker reported that she found it very distressing interacting with [the father], who would drop in, unexpectedly, often when she was working alone in the office. [The father] has repeatedly ignored our requests to attend the clinic only by appointment; we do not offer ‘drop-in’ services. Despite our best efforts, we have been unable to establish the necessary rapport, trust and relationship for meaningful therapeutic work in this matter. We have no information about the children, or what their voice may be in this matter. We do not, one year after [the father] first ‘dropped in’ to our office, have a signed agreement with [the father]. We would like to inform that we have been unable to provide services to [the father], and close our file.

[11] The evidence is clear that the mother has complied with the Order: the father has not. He failed to provide to the therapist his share of her retainer. He failed to sign the therapist’s agreement even after it was revised (and the mother agreed to fully fund the therapy). He failed to sign the releases required by the therapist. He failed to respond in a timely way to the many efforts of the therapist’s offices to contact him. He was argumentative, combative and uncooperative with the therapist and representatives of her office. No therapy has started. My Orders of January 4, 2019 and January 9, 2020 could not have been any clearer. Neither was a suggestion.

[12] In dealing with the merits of the mother’s motion, I am mindful of the primary objective of the FLR and the court’s duty to deal with non-compliance with its Orders. Those rules are set out in sections 2(2) to 2(5) and 1(8) respectively as follows:

Primary Objective

2(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing with Cases Justly

(3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

Duty to Promote Primary Objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

Duty to Manage Cases

(5) The court shall promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

Failure to Obey Order

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[13] In light of the trial evidence and what has transpired since then the mother’s request for a final Order in the terms proposed has merit. This case began in 2012 and has been plagued by lengthy delays. It is time to bring the parenting issues to a conclusion. Regrettably, nothing in the father’s recent affidavit addresses how or in what way the Order now sought by the mother would not be in the children’s best interests after eight years of litigation and the father’s lack of contact with RN for over four years and for over one and a half years in the case of KN.

Disposition

[14] The father shall be given one, last opportunity to comply with the court’s Orders and to move the parenting issues to a conclusion.

[15] Accordingly:

(a) The mother shall file with the court by July 10, 2020 an affidavit to which is attached a Bill of Costs incurred by her from and after January 4, 2019. This Bill shall include the therapist’s costs paid by her;

(b) The father shall deliver an affidavit by July 22, 2020 setting out his position about reunification therapy. If he proposes any form of therapy, his affidavit shall set out the identity of three proposed therapists, their estimated cost (which shall be the father’s sole responsibility) and timelines. If the father has resiled from therapeutic involvement, he shall provide an explanation why that would now be in the children’s best interests;

(c) The father’s affidavit shall also set out his position with respect to payment of the mother’s Bill of Costs referenced in (a) above;

(d) The father’s affidavit shall not exceed eight pages, double-spaced, exclusive of exhibits. It is not necessary to repeat the closing trial submissions made by his former counsel;

(e) Neither the mother nor the OCL are obliged to deliver anything in response to the father’s affidavit.

[16] The court will consider the father’s evidence in the context of the foregoing and trial evidence and proceed thereafter to deal with the parenting issues. Directions with respect to the trial of the non-parenting issues may be given then too.

[17] In the circumstances of the COVID-19 emergency, the directions in paragraph [15] are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis

Released: June 25, 2020

[1] R.N. v. A.N., 2019 ONSC 163.