COURT FILE NO.: F495/17
DATE: 20211015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Kelly Carter Wallace
Genevieve Samuels, for the applicant
Applicant
- and -
Lisa Yvonne Fisher
Brian Ludmer, for the respondent
Kate Bennett, for the Office of the Children’s Lawyer
Respondent
HEARD: September 8, 2021 (virtually) at London
Aston J.
[1] The main issue before the court on these four motions is the mother’s request to enforce three earlier orders of the court. The orders address her parenting time, counselling for her daughter Ruby and very detailed provisions for family reconciliation therapy, set out in the last of those orders. Her “Amended and Restated Notice of Motion” includes claims for other ancillary and consequential relief that I will address more specifically later in these reasons.
[2] Ruby is 17 and a half years old. She was about to turn 13 when her parents separated in March 2017. She has lived with her father and her older sister Lucy, now 24, since that time. She has not spent any time with her mother since November 7, 2017.
[3] The father concedes that he has failed to comply with the two orders for parenting time (made April 19, 2017 and May 31, 2017, within weeks of the separation) but he denies that he is responsible for alienating Ruby from her mother. He consented to the order of January 7, 2020 (the “Family Therapy Reconciliation Order”) and asserts that he complied with that order until Ruby herself refused to continue further participation.
[4] Ruby is independently represented by the Office of the Children’s Lawyer (“OCL”). The OCL not only opposes all the relief sought by the mother, but also seeks alternative relief by its own Notice of Motion. The OCL’s motion asks the court to vary the prior orders the mother is attempting to enforce by deleting certain provisions and by making others subject to Ruby’s views and preferences.
[5] As a preliminary issue, the mother’s Form 14B Motion asks the court to summarily dismiss the OCL motion and strike it from the Continuing Record on the following grounds:
There has been no Case Conference on the OCL motion
Ruby herself is not in compliance with the prior orders and therefore ought not be able to vary them
The motion is prejudicial (a) as an “end around” on behalf of the father and (b) because the mother has not had an opportunity to cross-examine on the OCL’s supporting evidence.
[6] On the hearing of the motions I ruled that the OCL has standing to bring a motion and is not limited to simply opposing relief sought by one of the parents. My conclusion in that regard is grounded in s.89.3 of the Courts of Justice Act and Family Law Rules 4(7) and 14(3). I then deferred consideration of the merits of the OCL motion and the other procedural objections of the mother. I will address that later in these reasons.
[7] Both parents seek to strike as inadmissible certain evidence included in the motion material. Though some of the evidence is indeed inadmissible, I need not address those objections in any detail because none of the impugned evidence is germane to the outcome on the main issue.
[8] The three prior orders were all presumptively in Ruby’s best interest when they were made.
[9] The Family Therapy Reconciliation Order, made 21 months ago, was on consent. It is lengthy and carefully crafted for its intended purposes of giving Ruby and her mother a fresh start that would be the foundation of a positive relationship between them.
[10] Mr. Ludmer submits that this case is not about the views and preferences of the child; it’s about how to change those views. He also points out that the mother is simply trying to enforce existing orders, presumptively in the child’s best interests, and the focus ought to be on Family Law Rule 1(8) not a fresh inquiry into the terms of those prior orders.
[11] The evidence of the social worker engaged by the OCL is clear and unequivocal. Ruby had her 17^th^ birthday last April. She is described as “mature, thoughtful and well spoken”. She has been consistent over a lengthy period of time in expressing her desire not to re-establish her relationship with her mother. Ruby does not want any contact with the respondent except as she herself may initiate in the future. She says she will continue to refuse to participate in any further sessions with Paula DeVeto, the person retained to conduct the family reconciliation therapy. Ms. DeVeto herself reported to the parties about a year ago that her continued involvement with the family “would not be helpful and is potentially harmful for Ruby as [the father] is actively not supporting reconciliation with [the mother]”.
[12] Item 7 in the mother’s main motion asks for an order that the father “withdraw and resile from all statements he has made since the Family Therapy Reconciliation Order which conflict with the terms spirit or intent thereof … and explain and assert unconditionally the withdrawal of those offending assertions and views in a session between [the parents] Ms. DeVeto and Ruby, and that such mea culpa on the part of the father be fully explored in therapy with Ruby”.
[13] Item 9 asks the court to order that the father “shall use his parental authority, influence and suasion with respect to the parties’ adult child Lucy [age 24] to foster her support with the goals and intent and specific terms of the reintegration therapy”.
[14] The mother’s pain and frustration are understandable, but such impractical and unworkable solutions are frankly not helpful.
[15] Ruby’s position, expressed through the OCL, may or may not be reasonable. She does cite specific examples, from personal experiences and interactions with her mother, that have left her feeling angry, afraid, embarrassed, anxious, insecure and unsafe. That said, I am prepared to assume for the purposes of this motion that Ruby’s extreme antipathy towards her mother is unreasonable and at least in part a reflection of the attitude and opinions of her father and her older sister. I am also prepared to assume for the purposes of this motion that not only Mr. Wallace but Ruby herself have failed to comply with the prior orders.
[16] Family Law Rule 1(8) provides the court with a broad range of options once a finding of non-compliance has been made. Sanctions are presumptive but not mandatory. The heart of the issue now before the court is whether to make any consequential order for non-compliance. A “consequential order” could be punitive or remedial or both but it ought to have an identifiable purpose and it must not adversely affect Ruby’s best interests. Though the court has a broad discretion after making a finding of non-compliance I doubt that it extends to an ability to dictate what the offending party is required to say or believe, as suggested in Items 7 and 9 of the mother’s motion noted above.
[17] Several of the specific orders sought in