Court File and Parties

COURT FILE NO.: FC1387/13-5

DATE: July 8, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: C.M.W.T., applicant

AND:

M.M.M., respondent

BEFORE: MITROW J.

COUNSEL: Erin O’Leary for the applicant

William Clayton for the respondent

HEARD: July 6, 2021 via videoconference

ENDORSEMENT

INTRODUCTION

[1] Both parties have brought various motions for interim relief.

[2] The applicant, C.M.W.T., and the respondent, M.M.M., are the parents of A. and C., who are both age 12.

[3] The applicant’s motion to change issued April 13, 2021, which started the current proceeding, was followed by the applicant’s urgent motion that came before me on June 2, 2021. That motion was adjourned, on terms, to June 24, 2021 before me. This permitted the respondent to file material. A further adjournment was granted to July 6, 2021. Various temporary orders were made, including on an interim interim without prejudice basis, pending the adjournments.

[4] The applicant’s motion was prompted by the undisputed fact that both children had been refusing to spend any parenting time with the applicant since in or about mid-March 2021.

[5] The applicant sought various relief to enforce his parenting time with the children, including a police assistance order.

[6] The respondent sought orders that included a stay of the motion to change and a stay of any attempt to enforce the existing final order until after a hearing.

[7] As discussed below, some of the issues were either resolved, or became moot.

[8] By the time that the motions were argued, the main issue had narrowed as to whether the court should order reconciliation counselling, or whether the litigation should proceed, with oral questioning on all the affidavits filed, with the issue of reconciliation counselling being deferred until a hearing has been held.

[9] For reasons that follow, the order below requires the parties to engage in reconciliation counselling.

BRIEF LITIGATION HISTORY

[10] As I described in a previous endorsement, this is a high-conflict parenting case.

[11] Prior to the current motion to change, the parties had participated in an arbitration conducted by Mr. Alfred A. Mamo (“the arbitrator”). The arbitration award dated February 20, 2020 was thorough and detailed, consisting of 46 pages and 211 paragraphs.

[12] The arbitrator, at paragraph 10, notes that the parties “have essentially been involved in some sort of legal process with respect to the children since their separation in 2012.” That finding by the arbitrator is amply supported by the evidentiary record on the motions currently before the court.

[13] The respondent, since early in the legal process, has had primary care of the children. Pursuant to a separation agreement signed in March 2013, she had “sole custody” of the children.

[14] After an application was commenced by the applicant in 2014, a final order was made by McSorley J. on April 20, 2016 (“the final order”). That order, in relation to major decisions for the children, stipulated that the respondent shall have meaningful discussions with the applicant regarding such decisions, but failing agreement, that the respondent “shall have the final say” (para. 2). The children’s primary residence continued to be with the respondent (para. 18).

[15] The applicant’s regular access schedule (now “parenting time”) was expanded somewhat in the final order from what had been contained in the separation agreement. In summary, the final order provided for the children to be with the applicant:

(a) in week one: from 5 p.m. Friday to 5 p.m. Sunday, but with the pick-up to be from school on Friday when the children were in school; and

(b) for week two: from 4:30 p.m., or after school, each Tuesday until 7 p.m., or 7:30 p.m. when necessary to accommodate A.’s dance class.

[16] The final order also contained detailed provisions regarding the applicant’s parenting time for statutory holidays, birthdays, March break, Christmas, New Years, summer vacation and P.D. days.

[17] After some further brief litigation in 2017, the parties consented to a final order dated November 21, 2017 that contained a minor variation of the existing final order primarily in relation to pick-up times when school was not in session.

[18] During the arbitration hearing, the applicant sought substantial changes to the existing parenting schedule, including a week-about parenting schedule and joint custody, with the applicant to have final decision-making authority regarding medical and dental decisions, and with the respondent to have final decision-making authority regarding education.

[19] The foregoing departure from the status quo sought by the applicant was rejected by the arbitrator. However, the arbitrator did make some changes to the applicant’s parenting time. For the regular schedule, week one, the applicant’s weekend time was increased to Monday morning. For week two, an additional overnight was added, from Thursday after school or 3 p.m. to Friday morning school time or 9 a.m. There was an increase in summer vacation time. Changes to the applicant’s parenting time was implemented for Christmas and New Years.

THE “STAY” ISSUE RAISED BY THE RESPONDENT

[20] It was the respondent’s position that the applicant’s motion to change, at least insofar as it relates to a variation of the current parenting order, should be stayed. The respondent relies on the dispute resolution provisions contained in paras. 51-58 of the final order. In particular, para. 56 states that the parties waive all right to litigate issues in court. The final order contains provisions for mediation-arbitration.

[21] However, at the case conference on July 5, 2021 before a Dispute Resolution Officer (“DRO”), it was indicated in the DRO report that the parties agree that the applicant may amend his motion to change, with a right of response to same by the respondent.

[22] At the hearing of the motions, the applicant clarified that his intention was to amend the motion to change by abandoning any relief for variation and, instead, seeking only to enforce the existing parenting provisions.

[23] As a result of the applicant’s proposed amendment, the respondent, rightly in my view, submitted that it was no longer necessary to pursue the issue of the stay. It is noted that both parties were ad idem that enforcement of the existing final order is not proscribed by the dispute resolution provisions contained in the final order.

[24] The order below deals with the applicant’s right to amend, consistent with the foregoing and the DRO report.

THE APPLICABLE LEGISLATION IN RELATION TO PARENTING ISSUES

[25] At the hearing of the motions, counsel needed further information to be able to advise the court whether the current motion to change proceeding was under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) or the Children's Law Reform Act, R.S.O. 1990, c. C.12; in particular, it was necessary to locate the pleadings that lead to the final order, as the order itself does not specify the legislation.

[26] Subsequent to the hearing of the motions, court staff located documents, including the divorce order dated December 13, 2013 (which was a divorce simpliciter), the application and the answer and claim. Said documents were directed to be forwarded to counsel. Further, the court received from counsel, following the hearing of the motions, pages one to four of the amended application.

[27] The application, issued after the parties were divorced, included claims in relation to parenting under the Divorce Act, and constituted a corollary relief proceeding under the Divorce Act. This was not altered in any way in the amended application. Accordingly, the final order would have been made under the Divorce Act. Although the application also sought parenting orders under the Children's Law Reform Act, the final order would be under the Divorce Act based on the principle of paramountcy.

THE PARTIES’ POSITIONS ON THE CONTESTED ISSUES

[28] While the applicant requested that exchange of the children should be supervised at Merrymount – Family Support and Crisis Centre and that a police assistance order should continue, it was also the applicant’s position that he wished to pursue reconciliation counselling and that an interim order should be made immediately to that effect.

[29] The respondent submitted that the children have made their views clear and that they do not wish to have parenting time with the applicant. The respondent submitted that any process implementing reconciliation counselling, at this early stage, is premature and that oral questioning should occur, and that a hearing should then be held, with the hearing, as a minimum, being a special appointment motion where the evidence would include transcripts of the oral questioning.

[30] The respondent emphasized that the children, given their ages, are entitled to have their views and preferences considered. Given that an OCL order was made recently, the respondent wanted to let that process unfold, should the case be accepted by the OCL. The respondent expressed a concern that any process of reconciliation counselling, at this time, might undermine the children’s expressed wishes and might amount, at least from the children’s perspective, as a pressure tactic to force the children to change their current views.

DISCUSSION

[31] While there is much conflict between the parties in their affidavit material, there is no dispute that, until approximately mid-March 2021, that the parenting schedule was being followed.

[32] The children’s refusal to see their father appears to be precipitated, in my view, by a somewhat innocuous event relating to one of the children exhibiting some cold symptoms. It was agreed between the parents that both children would stay home from school and that the applicant would miss a scheduled visit as a result.

[33] However, as events unfolded later during the week, acrimony between the parents prevailed and the children allegedly did not want to go with the applicant for his upcoming weekend parenting time. The applicant called police, who attended at the respondent’s home, but the police otherwise would not intervene to enforce the applicant’s parenting time. There was no police assistance order.

[34] I do find it somewhat difficult to understand the children’s sudden apparent desire to refuse to see their father based on the events of the week in question.

[35] It is the respondent’s evidence that the children’s refusal to see their father is the culmination of a long list of grievances and complaints that the children have against their father and his partner. The respondent explains that the children’s articulated position is not sudden, but the product of “many years of mistreatment” by the applicant and his partner.

[36] The respondent, in particular, at paragraph 36 of her affidavit sworn June 9, 2021, articulates many specific examples of the applicant’s conduct, much of which was recounted to the respondent by the children.

[37] The respondent describes that the children are highly intelligent, ranking in the top one percentile of intellect and that they are quite mature at evaluating and analysing information. The respondent further deposed that the children have been formally identified as gifted. The applicant, in his reply, does not dispute the respondent’s foregoing characterization of the children.

[38] For his part, the applicant disputes, categorically, all accusations of misconduct levied against him and his partner. The applicant engages in a point-by-point rebuttal of the respondent’s alleged list of grievances raised by the children.

[39] It is apparent that the children have endured a life of ongoing legal proceedings between their parents. The current litigation, for the children, is but another chapter in a long and seemingly endless saga.

[40] Both parents, however, do appear to want a solution. The respondent’s alternative submission, should the court not accept her primary submission, is that she is prepared to engage in reconciliation counselling. In this regard, both parties are prepared to have Elly Freund-Bell engage the parties in reconciliation counselling, although Ms. Freund-Bell, as yet, had not been formally retained. There is evidence that Ms. Freund-Bell is prepared to take this case.

[41] During the time period that the motions were adjourned, two different exchange locations were ordered to be used. Both parents were ordered to stop “videotaping” the exchanges. Each parent provided an affidavit as to recent attempts to have the children go with their father at the exchanges.

[42] It is clear from both parents’ material that the children tell their father that they do not want to see him or go with him. The children say this despite being told by the respondent to go with their father. During one occasion described in the applicant’s evidence, there was a time-limited police assistance order in effect, but the applicant deposed that he chose not to invoke it out of a concern of further upsetting the children.

[43] The applicant believes that the children are being negatively influenced against him by the respondent, while the respondent maintains that she encourages the children to go, but that they adamantly refuse.

[44] The court has authority, both under the Divorce Act and the Children's Law Reform Act, to make an order for reconciliation counselling as an incident of a parenting order: Leelaratna v. Leelaratna, 2018 ONSC 5983 (Ont. S.C.J.), paras. 45-46; and R.N. v. A.N., 2019 ONSC 163 (Ont. S.C.J.).

[45] Those cases dealt with the Divorce Act and the Children's Law Reform Act prior to the recent amendments. However, in relation to the Children's Law Reform Act, the relevant portions of s. 28(1)(b) and (c), as considered in Leelaratna, have not been affected in any material way by the amendments: B.W.G. v. N.H.M., 2021 ONSC 2727 (Ont. S.C.J.), paras. 24-25.

[46] In relation to the Divorce Act, prior to the recent amendments, Leelaratna relied on s. 16(6), which provided that the court “may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just” in relation to a custody or access order (para. 45).

[47] Currently, s. 16.1(5) of the Divorce Act contains wording that, while not identical, is similar and would authorize an order for reconciliation counselling as an incident of a parenting order:

16.1(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. [my emphasis]

[48] In addition, s. 16.1(4)(d) includes as follows in relation to a parenting order:

16.1(4) The court may, in the order,

(d) provide for any other matter that the court considers appropriate. [my emphasis]

[49] I find that an order for reconciliation therapy in the current circumstances can be regarded as a method of enforcing an existing order.

[50] The Divorce Act amendments support, specifically, a family dispute resolution process.

[51] Section 2(1) of the Divorce Act contains the following definition of “family dispute resolution process”:

a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law

[52] The Divorce Act imposes on the parties the following duties in ss. 7.2 and 7.3:

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Family dispute resolution process

7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

[53] I am not able to accept the respondent’s primary submission. This is not a time for more litigation including oral questioning. It is a time to explore a solution through clinical intervention.

[54] The best interests of the children, at this time, are served by implementing reconciliation counselling as set out in the order below. The next court date, and the limitations as to what is to occur at the next court date, are consistent with the discussions during the hearing of the motions, taking into account that the respondent’s counsel is not available on that date.

[55] Pursuant to s. 59.8 of the Family Law Act, R.S.O. 1990, c. F.3, the applicant seeks to enforce the arbitration award and seeks an order in the same terms as the arbitration award. The respondent filed a dispute pursuant to r. 32.1. During the hearing of the motions, based on submissions of both parties, it appears that there was consensus on the paragraphs from the arbitration award that should be incorporated into an order. Accordingly, the parties are encouraged to prepare and file minutes of settlement on this issue for the next court hearing.

ORDER

[56] I make the following interim order:

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

2. The parties shall execute immediately any agreement to implement the reconciliation counselling as required by the therapist and the parties shall comply with the agreement.

3. The fees of the therapist, including any retainer, shall be shared equally by the parties, subject to reapportionment at the conclusion of the case, or on motion, if the total fees have exceeded $15,000.

4. Each party shall pay his or her share of the therapist’s retainer or fees within 10 days of being advised of the amount.

5. 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.

6. As part of the reconciliation counselling, the parenting time, pursuant to the final order and arbitration award, between the father and both children shall not occur, except as recommended by the therapist, unless the court orders otherwise.

7. The applicant is granted leave to amend his motion to change to remove any claims for variation of the final order and to limit his claims to enforcement of the final order. The amended motion to change shall be served and filed within 14 days. The respondent is granted leave to serve and file an amended response to the motion to change within 14 days after being served.

8. The therapist shall be Elly Freund-Bell, subject to paragraph 9.

9. This matter is adjourned before me to 9 a.m. August 3, 2021 to deal with the following:

(a) appointment of a therapist should Ms. Freund-Bell decline to be the therapist;

(b) any further order in relation to, or incidental to, reconciliation counselling; and

(c) each party, by July 23, 2021, may serve and file one additional affidavit, limited to the issues in subparagraphs (a) and (b), said affidavits limited to four typed pages, double-spaced, plus, as exhibits, any resumes of proposed therapists.

10. Written argument, limited to five typed pages, double-spaced, shall be served and filed by July 28, 2021 on the issues listed in paragraphs 9(a) and (b).

11. This order is made pursuant to the Divorce Act.

12. All other claims made by both parties on the motions are dismissed.

13. If the parties are unable to settle costs of the motions, then written costs submissions may be forwarded to the trial coordinator, limited to three typed pages (two pages in reply), double-spaced, plus copies of time dockets, bills of costs and offers to settle as follows:

(a) by the applicant within four weeks;

(b) by the respondent within four weeks thereafter; and

(c) by the applicant, reply, if any, within one week thereafter.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: July 8, 2021