I.S. v. T.C., 2021 ONSC 644

Court File and Parties

COURT FILE NO.: FC-20-168 DATE: 2021/01/26 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: I. S., Applicant AND T. C., Respondent

BEFORE: Mackinnon J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: In Writing

ENDORSEMENT

1The section 30 assessment for this family was released and is dated December 18, 2020. I requested the parties’ submissions on whether temporary orders should be made as recommended on the following issues:

1. At page 106 para 1.2.1 (Collaborative Problem-Solving Parent training for the father).
2. At page 107 para 2.1.6 (one phone call each week for ten minutes duration, plus on parents’ birthdays).
3. At page 107 para 2.2 (right of first refusal if a parent is away overnight).
4. At page 109 para 3.1.1 (Ms. P. to be limited to two overnights per week).
5. At page 109 para 4.1 (status of psychoeducational assessment for J. at the school or should this be pursued privately?).
6. At page 110 para 4.3 (tutoring arrangements for J).
7. At page 110 para 4.6 (counselling for J. at Wabano and Collaborative Problem Solving at Crossroads: what is available for him at each facility?).
8. At page 110 para 4.8.1 for the father and 4.8.2 for the mother (do the parents agree to follow these recommendations?).

2I also asked for submissions on two additional issues:

1. Whether the OCL should be asked to provide a lawyer for J.? If so, should the OCL receive the Section 30 assessment to consider in making its decision?
2. Whether Ms. Cuhacci should receive the assessment to consider in connection with formulating her opinion as to whether she should continue to provide counselling to the father and son?

3The parties have provided their written submissions.

Collaborative problem-solving training for the father at Crossroads (assessment para 1.2.1)

4The father accepts and agrees to a temporary order to undertake this training. He has scheduled to participate in the CPS training starting on January 22 with Crossroads. It is ordered that the applicant shall complete the eight session virtual parent group teaching the concepts of collaborative problem solving through Crossroads commencing January 22, 2021 and shall provide documentary proof of having done so.

Telephone communication (assessment para 2.1.6)

5The recommendation made is that if J. wishes to reach out to the other parent this should be allowed but limited to once a week with a 10 minute duration. Further that an exception be allowed for the parents’ birthdays when J. should be encouraged and supported in reaching out to the birthday parent for a maximum 10 minute conversation. The father agrees to this recommendation and wants to add to it, that the ten minutes per week should be inclusive of all media / means of contact and communication. He also suggests enlarging telephone communication if parenting time is interrupted on account of travel or public health restrictions due to the pandemic. The mother requests more telephone communication than is recommended by the assessor. She asks for 30 minute chats after school or before bed at least three times per week.

6The assessor’s opinion was that additional communication was contraindicated at present given the “current psychological situation”. This reference appears to be to the extent to which the mother has identified with J. and the influence on J. of the alliance between him and his mother which made it increasingly difficult for the father to find a place in his child’s life. Reference is made to the assessment at pages 100 to 102, 104. These views resonate with my own impressions of the family dynamics and I accept the recommendation the assessor has made at this point in time. I reject the father’s request to include all forms of communication in this ten minute allocation being of the view that so doing would contribute to rather than lessen conflict and potentially result in breaches of J.’s privacy. It is ordered that if J. wishes to reach out to the other parent by telephone this should be allowed but limited to once a week with a 10 minute duration. The parents shall encourage and support J. in telephoning his parents on their birthdays, also for a maximum 10 minutes duration.

Right of First Refusal (assessment para 2.2)

7The mother accepts the assessor’s recommendation that if a parent is not available to care for J. overnight the other parent should have the first option of taking over his care without having to compensate for the time. The father asks to delay this until the second step of the residential schedule recommended in the assessment. Until then, he seeks to retain the right for his parents to care for J. overnight in accordance with my endorsement dated November 4, 2020. At that time, I ordered that if the father needed to be out of town for business his parents would continue to be the alternate care givers for J., in the father’s home when school is in session so that J. can attend school. If they were not able to fulfill this role then J. would reside with his mother while his father was away.

8In support of his position the father relied on information from the mother that she was planning travel out of the country in February. This travel will not be going ahead due to the stay at home order in Ontario and other governmental advice to Canadians advising against international travel. The father also produced an email from the mother dated December 19 stating that she would not be helping J. with his schoolwork until her parenting time with him is increased. It would appear from the mother’s reply affidavit that she is no longer of that mind, and in any event, I am satisfied that if it were a condition of her having the right of first refusal for J.’s overnight care, that she would of course provide with him the required parental assistance with his homework during that time.

9Accordingly, it is ordered that that if a parent is not available to care for J. overnight the other parent shall have the first option of taking over his care without having to compensate for the time, and that during any such time the parent caring for J. shall assist J. as required with his school/home work.

Father’s partner (assessment para 3.1.1)

10The assessor recommends that the father’s partner, Ms. P. does not spend more than two overnights per week in his home until the second step of the residential schedule starts. The father agrees with the recommendation but would prefer it not form part of a court order. He also wants part of para 9 of the November 4 endorsement rescinded, which provides that his partner may not reside in his house or be left alone with J. “at this time”. The father also asks that if neither his parents nor the respondent mother can care for J. if he is away on business that Ms. P could do so even if it is for more than two overnights in a week.

11The mother objects to Ms. P. being present in the father’s home at any time when J. is there. She bases her objection on investigations she says the police and CAS are conducting into an assault on herself by Ms. P. The mother may renew this objection if the police charge Ms. P. or the CAS recommends that Ms. P. should not have contact with J. The mother also submits that Ms. P. is a practicing sex worker and therefore a significant risk to J. during the pandemic and lockdown. This concern can be addressed by an order requiring an undertaking from Ms. P. that she will adhere to all advisory guidelines published by Ottawa Public Health which includes an outline of the measures she takes to do so.

12Ms. P. participated in the assessment as the father’s partner. The assessor wrote at page 102 that Ms. P. seems to be a stabilizing factor in the father’s relationship with J. and seems to be able to influence J.’s behaviours in an adaptive way. The assessor formed the impression that Ms. P. has not been a damaging presence for J. These statements were not made definitively. In my view they do not support the father’s request to rescind the order that Ms. P. cannot reside in his home or that she can be the backup caregiver for J. if the mother and paternal grandparents are not available. They do support lifting the prohibition of her being left alone with J. on an occasional and time limited basis.

13For these reasons it is ordered that Ms. P. shall not overnight in the father’s home more than twice each week while the current residential schedule is in place. It will be a condition of the father permitting her to do so that Ms. P. shall first provide an undertaking to the court, copied to the mother at the same time, stating that she is and shall adhere to all advisory guidelines published by Ottawa Public Health related to Covid-19 and which includes an outline of the measures she takes to do so. Having done so, Ms. P. may also be permitted to be on her own in the home with J. for short periods of time on an occasional basis, such as for example, when the father steps out to run a quick errand.

14It is also ordered that the mother may renew her objection to Ms. P.’s presence in the father’s home when J. is also there if the police charge Ms. P. or the CAS recommends that she should not have contact with J.

Psychoeducational assessment (assessment para 4.1)

15The assessor recommends that J. should undergo a psychoeducational assessment either through his school or privately if need be. Both parents agree. The father says the school has declined to provide this service in the recent past, and that he will ask again when school returns to in person learning. The mother says she should be the parent to take the lead on this matter. Neither parent steps forward to pay for a private assessment if one is required.

16It is ordered that the father shall prepare a written request to J.’s school formally requesting the psychoeducational assessment noting it has been recommended by Dr. Chupetlovska and including other persuasive examples and information as considered important by the father. This request shall be delivered to the school principal within 10 days hereof and at the same time copied to the mother. She may if she wishes would add her own support to the request, containing her own examples and / or information also to be delivered to the school in writing and to the father at the same time.

17Section 20 (5) of the Children’s Law Reform Act ¹ is set out below, in that some of the parties’ submission suggested that one or both of them may not be aware of this provision:

Parenting time

20 (5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.

If need be to give effect to the mother’s entitlement under section 20(5) the father shall provide his written consent to J.’s service providers to communicate directly with the mother.

18It is also ordered that the parties return to Audet J on both the issue of whether the father has complied with her order dated December 2, 2020 to apply for a line of credit or other form of loan, and to discuss payment for a psychoeducational assessment for J. in the event the school declines to provide one. The father denies he is in contempt of the December 2 order, but provides no documentary back up to show that he has applied for the additional financing and been denied. Further he describes the order as authorizing him to obtain additional financing, whereas I read the order as requiring him to do so. In my view the order does not permit him not to apply for the financing simply because the section 30 assessment has now been paid for by the mother and the assessment report received. However, I defer that question to Audet J. as it is her order and she is assisting the parties with their financial issues.

Tutoring for J. (assessment 4.3)

19The assessment states that J. needs substantial assistance with his schoolwork and his French, that both parents need to participate personally or with tutors. The father reports that J.’s school did not favour tutoring as it would burn him out. He prefers to follow the school’s advice rather than have the court make such specific orders regarding J.’s education. The mother notes that the father is not proficient in French and may have misunderstood the school recommendations regarding tutoring.

20It is ordered that in the letter required at para 16 the father shall include a request for an answer from the school on the question of whether a tutor should be obtained for J, and if so what subject(s) should be prioritized. He should also inquire whether a parent may provide special assistance to J. in lieu of tutoring and if so, how could the school help to facilitate this? As noted above in para 16 the mother may supplement the father’s letter.

21I expect that by the time the parties hear back from the school that they will have returned to Justice Audet to continue their settlement discussions on the parenting issues. I suggest they endeavor to agree in that forum as to how best each parent can assist J. in his schoolwork if professional tutoring has to take second place to paying for a private psychoeducational assessment for J.

Counselling for J. (para 4.6)

22The assessor describes J. as an anxious child and at risk of developing depression if the family instability continues. She recommends he continue his supportive counselling at Wabano for as many sessions a year as are possible. I am told his permitted 3 sessions at Wabano are used up. This would be true if Wabano follows an academic year, but by the calendar year perhaps not. It is ordered that J. continue to receive supportive counselling from Wabano for as many sessions as are permitted, as soon as those sessions are available.

23The assessor also recommends that J. engage in the Collaborative Problem Solving focused counselling at Crossroads. Neither parent has reported as to the availability of that service for J. It is ordered that the father shall forthwith write to Crossroads with this inquiry, including the recommendation for it from the assessor. His inquiry should be copied to the mother when sent and should include a request for a prompt response from Crossroads for this court.

24J. is on a wait list at Crossroads for a maximum 8 sessions of counselling on specific anxieties such as premeditated pain, (needles, dental work), or discomfort as in a required medicine that smells or tastes bad. This would be helpful for J. and should be undertaken when available, likely within another six weeks or so.

25However, neither of these specific counselling sessions for J. constitute supportive counselling, which he needs on a fully confidential and ongoing basis. It is ordered that the mother shall have a period of 30 days in which to identify Indigenous supportive counselling that could be made available to J., and to notify the father of any available options she deems suitable for J. so that he can inform himself about them. If the parents do not agree on Indigenous supportive counselling for J. or, if none is available in a timely fashion, do not agree to a supportive counsellor available through a Family Service agency in Ottawa, then this matter shall return to this court for determination on a motion supported by affidavit material. It is ordered that the parents report back to this court by March 12 as to whether they have agreed upon a supportive counsellor for J.

Therapy for the Parents (assessment para 4.8.1)

26The father agrees to the recommendation that he engage in continuous individual therapy to assist him with anxiety and depressiveness. He also agrees to share the recommendations with his counsellor. I draw to his attention that the assessor recommended that the report should be shared with involved mental health professionals, not merely the recommendations.

27The mother also agrees with the therapeutic recommendations for herself and adds that she is seeing someone at Jewish FS for trauma therapy. The specific recommendation for the mother was ongoing psychotherapy with a practiced psychiatrist or clinical psychologist, with significant experience with personality issues and psychological trauma, and that this should be additional to supportive therapy. It is not clear that these specific requirements are being met at the Jewish FS.

28I make no order that either parent adhere to the assessor’s recommendations at this point. I urge them both to do so in their own interests and for J.’s also. If the case does proceed to trial, they both should know that evidence as to the extent of their voluntary compliance with these recommendations and any progress made because of it will be significant.

Appointment of the OCL for J.

29The parents agreed to the section 30 assessment on May 4, 2020. With the report in hand I have asked for their submissions as to whether the OCL should be asked to provide a lawyer for J. and if so, whether the OCL should receive the assessment to consider in making its decision?

30The father disagrees that the OCL should be involved. He says J.’s views are already available to the court in the assessment and through CAS social workers. The mother strongly believes the court should request the OCL to provide a lawyer for J. She submits that he will soon be ten years old, that he is bright and articulate and should have his voice heard. The mother says the OCL should enter the case without any bias, to meet J. and hear his voice objectively. I take from this that she does not agree to the OCL receiving a copy of the section 30 assessment prior to deciding whether to assign a lawyer and that if a lawyer is assigned s/he should not see the report until after meeting with J.

31J. has also expressed on occasion that he does not feel his voice is being heard by the court.

32J. is on the young side for legal representation. His views and preferences are available to the court via the assessment and the CAS social workers. It would be unfair and likely counterproductive to request the OCL to provide him with a lawyer without making the section 30 assessment available for consideration in reaching the decision. J. is a child struggling under chronic psychological pressures which are not likely to be relieved soon. I am satisfied he may have a better appreciation of the process and more acceptance of the fact that his views are before the court and that his voice is heard should a lawyer be assigned to him.

33Based on these considerations it is ordered that the OCL shall be requested to consider providing a lawyer for J. and shall receive a copy of the section 30 assessment to consider in making the decision. Should the OCL assign a lawyer for J., it will be the decision of the lawyer how to approach his or her first client meeting. That is not something in which a court would intervene.

Relationship counselling for the father and son

34Ms. Cuhacci has been providing relationship counselling to the father and son pursuant to a court order. Her expressed view was that this should be re-evaluated after the section 30 assessment was complete. I asked for the parties’ submissions as to whether Ms. Cuhacci should receive the assessment to consider in connection with formulating her opinion as to whether she should continue to provide counselling to the father and son.

35This counselling is not mentioned or recommended in the report, although the father states that the assessor was aware of it. His view is that Ms. Cuhacci need not see the report because she will base her decision on whether the court asks her to continue and whether the court will continue to provide judicial oversight to her involvement. The mother takes no position on whether Ms. Cuhacci should see the report. She reiterates her position that it is not reunification counselling because she has not been involved.

36The court wants Ms. Cuhacci’ s input into continuing her involvement after she has reviewed the assessment report. It is ordered that the father shall forthwith deliver a copy of the section 30 assessment to Ms. Cuhacci together with a copy of this endorsement so that she may then provide the court and the parties with her recommendation as to whether she should continue the father/son counselling at this time.

37Moving forward I will continue to hear required motions on the case, and I will recommend that an expedited date be provided for the trial. Settlement discussions on any and all issues are to be conducted with Justice Audet.

Mackinnon J.

Footnotes

1. 1Children's Law Reform Act, R.S.O. 1990, c. C.12