Court File and Parties

COURT FILE NO.: FC1269/17

DATE: April 15, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: B.W.G., applicant

AND:

N.H.M., respondent

BEFORE: MITROW J.

COUNSEL: Matthew Villeneuve for the applicant

Kimberly L. Doucett for the respondent

HEARD: March 31, 2021

ENDORSEMENT

[1] The applicant, B.W.G. (“the father”), and the respondent, N.H.M. (“the mother”), are the parents of two children, N. and R., ages 9 and 8, respectively.

[2] The matter before the court is the father’s motion initially returnable January 26, 2021. The substantive relief sought on the motion is an order as follows:

(a) that the children cease counselling with Mr. Chris Chmielewski (“Mr. Chmielewski”) and that the children attend reconciliation counselling with Ms. Paula DeVeto (“Ms. DeVeto”) or Ms. Elly Freund-Bell (“Ms. Freund-Bell”); and

(b) that the father have parenting time for a minimum of eight hours per week, working towards a gradual return to parenting time, as set out in the consent endorsement request dated August 30, 2018, with the schedule of the parenting time to be determined by the therapist conducting the reunification counselling.

[3] This is a long-standing and high-conflict parenting case. The parties disagree fundamentally as to the important facts.

[4] The mother’s allegations include that she has suffered domestic violence during cohabitation and since separation; that the father has uttered death threats; that the father yells and calls her names in front of the children; that the father acts aggressively when the children are exchanged; and that the father yells and screams at her over the telephone.

[5] The mother’s evidence is that the children have witnessed the father’s anger and aggressive conduct, that they are fearful of him and that they do not wish to see the father at this time.

[6] For his part, the father denies all allegations of abuse towards the mother and the children. He denies that he uttered any death threats towards the mother and points out that his charges of uttering death threats were resolved by way of a peace bond. The father deposes that the incident resulting in the charges occurred in September 2017 and that, subsequently, he had the children in his care pursuant to a shared parenting schedule that continued up to December 2019.

[7] There is no dispute between the parties that the father has not had parenting time with the children since in or about the latter part of December 2019. The father’s position is that the mother is engaging in a course of conduct designed to alienate the children from him. The mother strongly disputes this allegation.

[8] It is unnecessary, for the purposes of the motion before the court, to embark on any analysis as to why the children are not seeing the father. It is sufficient to summarize the parties’ positions to provide context for the order being made below.

[9] On January 27, 2020, on a motion brought by the mother, Leitch J. made an order, on a temporary without prejudice basis, that the father’s access to the children should remain supervised by Brayden Services and that this order should continue until further order of the court.

[10] Unfortunately, despite the best efforts of Brayden Services, as is apparent from the various visit notes from January and February 2020 prepared by Brayden Services, the children have refused to attend any visits with the father.

[11] The situation currently is most serious, as the father is having no ongoing relationship with the children. A significant issue included in the large volume of affidavit evidence relates to the father’s request for an order that Mr. Chmielewski cease providing counselling for the children. The father levies a number of allegations against Mr. Chmielewski, including that he is biased, all of which are denied by the mother.

[12] It is not necessary to make any findings regarding Mr. Chmielewski, as the mother has agreed to the father’s request that Mr. Chmielewski should not provide any further counselling for the children. It is also noted that Mr. Chmielewski provided a recent affidavit, which indicated that he had not seen the children in over a year, other than seeing the children on February 13, 2021 at the mother’s request. On February 3, 2021, I had made an order as to further material to be filed on the motion and this included, by the mother, an affidavit from the children’s current counsellor limited only to the number of times that he has seen the children since his letter dated March 3, 2020 and his clinical observations regarding those appointments.

[13] The order below, in relation to Mr. Chmielewski, should not be interpreted as having been made on the basis of any inappropriate conduct by Mr. Chmielewski. The reality is that Mr. Chmielewski has not been engaging in any counselling with the children for over a year.

[14] I do not regard the mother’s agreement as any admission by the mother that Mr. Chmielewski has conducted himself inappropriately in his role as counsellor. Rather, the mother’s concession removes one issue and permits the parties to focus on reconciliation counselling.

[15] It is noteworthy that the parties had commenced a process of retaining Ms. Freund-Bell to provide reconciliation counselling. However, that process came to an abrupt halt when Ms. Freund-Bell forwarded a letter to both counsel jointly dated February 17, 2021 that she is not prepared to provide any further service to this family. Ms. Freund-Bell’s recusal was related, in part, to the meeting between Mr. Chmielewski and the children on February 13, 2021 and Ms. Freund-Bell’s review of the notes from that meeting. Ms. Freund-Bell concluded that her processes, including working with the children and bringing in the concept of reconciliation as appropriate, had been undermined.

[16] Unfortunately, Mr. Chmielewski’s meeting with the children spawned a further flurry of allegations by one party against the other and added unnecessarily to the existing voluminous material.

[17] No findings are necessary as to whether Mr. Chmielewski should or should not have met with the children. The only finding that is necessary is that Ms. Freund-Bell has recused herself. However, it remained the father’s position that it still was appropriate for the court to consider Ms. Freund-Bell as a therapist to provide reconciliation counselling. The mother disagreed with that position.

[18] In the circumstances, it is quite perplexing as to why the father continues to insist that Ms. Freund-Bell still should be considered to provide reconciliation counselling, particularly when Ms. Freund-Bell, subsequent to her recusal, provided to the father a letter dated March 27, 2021, which, at the mother’s request, was struck from the father’s material. In my endorsement dated March 31, 2021 striking the letter, I stated, in part, at para. 4:

The letter dated 27 March 2021, is addressed only to the Applicant [the father]; the letter amounts to an opinion, and it critiques the current counsellor. The Respondent [the mother] had no opportunity to provide input or information to Ms. Freund-Bell. To the extent that the letter is an opinion, it is deserving of little or no weight as the opinion was the product of a unilateral process excluding the Respondent [the mother]. …

[19] Aside from Ms. Freund-Bell’s recusal, her opinion letter to the father would compromise her neutrality and would remove her from any consideration to provide reconciliation counselling. However, in fairness to Ms. Freund-Bell, I note there was no evidence that she was asked to assume that role following her letter of recusal.

[20] The evidentiary record indicates that both parties support reconciliation counselling. However, the mother has proposed that the children first should engage in focussed trauma therapy and that the children should continue that therapy until the trauma therapist determines that the children are ready to engage in reconciliation counselling.

[21] I do not find that the evidentiary record supports a delay as to reconciliation counselling. It is fair to conclude that both parties support the children having a good relationship with each parent. The process of reconciliation counselling should proceed without further delay, as that is in the children’s best interests.

[22] The father relies on the decision of Jarvis J. in R.N. v. A.N., 2019 ONSC 163 (Ont. S.C.J.). In that case, after trial, the court made a very detailed and specific order regarding the implementation of family unification therapy, at para. 11. I concur with the father’s submissions that an analogous detailed order should be made in the present case.

[23] Given the support of both parents for reconciliation counselling, this is a circumstance where such an order can be made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 as an incident of a parenting order. In Leelaratna v. Leelaratna, 2018 ONSC 5983 (Ont. S.C.J.), at paras. 45 and 46, the court found that there was authority to make a therapeutic order under both the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the Children's Law Reform Act:

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

Children's Law Reform Act

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

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

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

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

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

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

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

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

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

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Divorce Act

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

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

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

[emphasis in the original]

[24] In the present case, the Children's Law Reform Act is the relevant statute. As a result of recent amendments, sections 28(1)(b) and (c) now provide:

Parenting orders and contact orders

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

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

[25] The relevant portions of sections 28(1)(b) and (c) of the Children's Law Reform Act considered in Leelaratna have not been affected in any material way by the amendments. I adopt the conclusion in Leelaratna. I find that the order below is within the ambit of the statutory provisions in sections 28(1)(b) and (c) of the Children's Law Reform Act.

[26] The father alternatively proposed Ms. DeVeto to conduct the reconciliation counselling. The mother takes no issue with Ms. DeVeto’s qualifications. However, the mother has raised an issue that Ms. DeVeto may have a conflict. I find that the mother’s evidence as to a conflict appears vague and speculative. The mother’s evidence is that they may have mutual acquaintances in the community. However, the mother provides no further details. In reply, the father deposes that Ms. DeVeto has confirmed that there is no conflict and that Ms. DeVeto does not know the mother.

[27] Although the mother has proposed the names of two therapists to assess whether the children require further focussed trauma therapy prior to commencing reconciliation counselling, the mother has not proposed any other persons to conduct reconciliation counselling. It is important to move forward with reconciliation counselling and the order below appoints Ms. DeVeto to conduct the reconciliation counselling. That order also does require that the therapist should assess any potential for conflict at the outset. The mother was not opposed to Ms. DeVeto making an assessment as to whether or not she had a conflict in the event that the court appointed Ms. DeVeto to conduct the reconciliation counselling.

[28] The order below is structured such that the order at the outset sets out all of the terms of reconciliation counselling, the obligations of the parents and the role of the therapist. Therefore, should Ms. DeVeto not be able to conduct or continue the reconciliation counselling for any reason, then a further therapist could be appointed with all of the conditions relating to reconciliation counselling already in place.

[29] Regarding costs of the reconciliation counselling, the father submits that the costs should be shared equally, while the mother submits that the costs should be proportional to the parties’ respective incomes. However, there is little, if any, evidence as to each party’s past or current income. The order below reflects that the costs of the reconciliation counselling are to be apportioned equally in the first instance but without prejudice to either party’s request to have the costs reapportioned.

[30] The issue of the re-establishment of the father’s parenting time with the children is dealt with in the order below.

[31] In relation to the children’s best interests, I cannot over-emphasize the importance of both parties cooperating fully and expeditiously with the reconciliation counselling process as ordered below.

ORDER

[32] I make the following interim order pursuant to the Children's Law Reform Act:

1. The parties shall ensure and facilitate their own and both children’s participation in reconciliation counselling, with the primary objective being the re-establishment of a relationship between both children and the father.

2. Prior to commencing the reconciliation counselling process, the therapist shall determine whether he or she has any conflict that prevents him or her from engaging in any reconciliation counselling with the parties and the children.

3. The parties shall execute immediately any agreement to implement the reconciliation counselling as required by the therapist.

4. The parties shall share the costs of reconciliation counselling in the first instance as follows:

(a) each party shall pay the therapist 50 percent of the therapist’s retainer within 10 days of being advised of the amount, including any additional retainer from time to time; and

(b) each party shall pay 50 percent of any accounts submitted thereafter by the therapist, within 10 days after receipt of the account.

5. Paragraph 4 of this order is without prejudice to each party’s right to request an order for a reapportionment of the therapist’s fees at the conclusion of this case, or pursuant to an emergency motion for directions if the therapist’s accounts have exceeded $15,000.

6. If a party fails to pay his or her share of the therapist’s accounts or retainer requests, then the other party is at liberty to make the payment, and that party shall be entitled to request a costs order for that amount when costs are dealt with at the conclusion of this case. Any payment made pursuant to this paragraph does not affect any other sanction against the defaulting party, including the right of the non-defaulting party to bring an emergency motion for directions.

7. The parties shall comply with all the terms of the agreement executed by the parties for reconciliation counselling.

8. Unless otherwise directed by the therapist, the mother is responsible for transporting the children to and from all their appointments with the therapist.

9. Unless otherwise directed or approved by the therapist, neither party shall take the children to any other therapist (this includes a counsellor, social worker, psychologist or psychiatrist) and neither party shall arrange for, or permit, either child to engage in any other therapy.

10. Neither the parties, nor anyone else who participates in the reconciliation counselling, shall record any portion of the reconciliation counselling, unless written permission is first given by the therapist.

11. Neither party shall discuss any aspect of this order or the reconciliation counselling with the children except as approved and permitted by the therapist, and this includes obtaining the therapist’s permission as to what the children shall be told about the fact that reconciliation counselling shall take place and what the children shall be told prior to their first meeting with the therapist.

12. As part of the reconciliation counselling, the therapist has the following authority:

(a) the therapist may interview professionals, or other persons, as deemed necessary by the therapist, and the parties shall sign any releases required by the therapist for that purpose within three days of any written or verbal request made by the therapist;

(b) the therapist may engage other professionals to assist with any aspect of the reconciliation counselling, as deemed necessary by the therapist to assist with the reconciliation counselling, and the parties shall sign any consent as required by the therapist within three days of any written or verbal request made by the therapist; the fees of any professionals shall be paid by the therapist from the retainer;

(c) the therapist may recommend to both parties a schedule of parenting time between the father and either child or both children together, including telephone and electronic communication; if both parties fail to agree to the recommendations made by the therapist, then the therapist shall prepare a brief report containing the recommendations and shall forward the report jointly to both parties, following which each party is at liberty to bring an emergency motion for directions; and

(d) the therapist may involve any other person who is a non-professional in the reconciliation counselling after first discussing with the parties that person’s anticipated involvement; the parties shall sign any consent as required by the therapist within three days of a written or verbal request made by the therapist.

13. The parties shall give priority to ensuring that they attend all appointments scheduled by the therapist. Further, all attendances by the children for appointments with the therapist shall take priority over any scheduled activities for the children and appointments with the therapist may take place during regular school hours, if so requested by the therapist.

14. If either party fails to comply with the obligations contained in the reconciliation counselling agreement, fails to attend for appointments as required by the therapist, fails to pay any retainer request or fees owing to the therapist, fails to bring the children to appointments as required by the therapist and fails to comply with the terms of this order in relation to reconciliation counselling, then the therapist shall write a brief report jointly addressed to both parties, following which each party is at liberty to bring an emergency motion for directions.

15. The reconciliation counselling shall continue in respect of each child:

(a) for as long as the therapist directs;

(b) until the therapist determines that it is no longer in the child’s best interests to continue with the reconciliation counselling; or

(c) until a court order is made terminating the reconciliation counselling.

16. If the therapist directs that further reconciliation counselling shall not continue or is no longer appropriate for either child, then the therapist shall provide a brief report to both parties setting out the reasons for the termination of the reconciliation counselling, the progress made and any recommendations as to further reconciliation counselling or any other therapeutic or clinical intervention.

17. The therapist shall be provided with the following documents:

(a) the OCL report dated March 28, 2018;

(b) this order and endorsement;

(c) all visit reports prepared by Brayden Services;

(d) the order and endorsement of Leitch J. dated January 27, 2020;

(e) any written separation agreement or consent endorsement request signed by both parties that relates to parenting issues;

(f) any other order that relates to parenting issues; and

(g) any other document in the possession of either party, or available to either party, that may be requested by the therapist, in writing, sent to both parties jointly.

18. Paula DeVeto is the therapist who shall conduct the reconciliation counselling in accordance with the terms and provisions set out in this order.

19. If for any reason Paula DeVeto declines to act as the therapist, or commences reconciliation counselling and is unable to continue, then Paula DeVeto shall provide a brief letter or report and an emergency motion for directions may be brought by either party to appoint another therapist.

20. Where an emergency motion for directions is authorized by this order:

(a) the parties shall contact the trial coordinator for an emergency motion date and, on the authority of this order, the trial coordinator shall provide the parties with an emergency motion date;

(b) each party may serve and file one affidavit, limited to five typed pages, double-spaced;

(c) the only exhibits which are permitted shall be any relevant letter or report from the therapist, a copy of this endorsement and order, copies of the therapist’s accounts and relevant financial disclosure for a party where the motion relates to the reapportionment of the therapist’s fees, and any resume of the proposed therapist where the motion relates to the appointment of a new therapist; and

(d) if the trial coordinator determines that I am available to hear the emergency motion for directions, then the trial coordinator shall place that motion before me.

21. The children shall cease all further counselling or therapy with Mr. Chris Chmielewski.

22. The costs of the motion are reserved to the judge who deals with this case on a final basis.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 15, 2021