M.P.M. v. A.L.M., 2022 ONSC 3775

COURT FILE NO.: FC408/18

DATE: July 27, 2022

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: M.P.M., Applicant

AND:

A.L.M., Respondent

BEFORE: SAH J.

COUNSEL: Brian Ludmer for the Applicant

A.L.M. in person

HEARD: June 9, 2022

RULING ON MOTIONs

Overview

[1] Each party claims the other, to varying degrees, is non-compliant with court orders. A thirteen-year-old girl and an eleven-year-old boy are at the center of each provision of the orders made.

[2] The applicant father (“father”) brought a non-compliance motion seeking various reliefs resulting from the respondent mother’s (“mother”) alleged failure to obey provisions of court orders relating to parenting time and counselling/therapy for the children and herself.

[3] The mother brought a cross-motion. The only issue to be determined on her motion deals with the father's alleged non-compliance with payment of child support arrears.

[4] The children have suffered significantly as a result of their parents’ separation. If non-compliance is found, this court needs to determine what remedy is in their best interest.

Background and Litigation History

[5] When the parties separated, their children, D.M. and S.M., were nine and six years old, respectively. The children are currently thirteen and eleven years old.

[6] There are several orders subject to these non-compliance motions, including:

1. Final order of Grace J. dated April 7, 2020 (“Trial Order”);
2. Costs order of Grace J. dated June 4, 2020 (“Trial Costs Order”);
3. Temporary order of Grace J. dated September 25, 2020 (“Temp. Order”);
4. Final order of Grace J. dated January 8, 2021 (“Review Order”);
5. Costs order of Grace J. dated February 24, 2021 (“Review Costs Order”); and
6. Decision of the Court of Appeal dated June 28, 2021 (“Appeal Order”).

[7] After a trial held in 2019, the mother was found to have alienated the children from the father.

[8] A summary of the relevant provisions of the Trial Order includes:

1. Joint custody, now decision-making, of the two children
2. The children’s residency with the mother
3. Weekly Wednesday virtual parenting time between the children and the father
4. Weekly Sunday virtual parenting time between the children and the father
5. A ramp-up to alternate weekend parenting time, in person, from Friday at 4:30 p.m. to Sunday at 7:30 p.m.
6. Requirement that parties undergo an assessment and therapy to address, amongst other things, the children's alienation from their father
7. Requirement that the mother immediately seek therapy concerning her alienating behaviour to gain insight into her conduct
8. Requirement that the father to pay the applicant retroactive child support in a set amount.

[9] The trial judge remains seized of the matter and held a review hearing in the fall of 2020.

[10] A summary of the relevant provisions of the Review Order includes:

1. The continuation of the shared custody/decision-making regime
2. The continuation of the children's primary residency with the mother
3. The continuation of virtual and in-person parenting time between the children and the father
4. Requirement that the mother provide not less than weekly electronic updates to the father regarding the children's activities, schooling, and health
5. Specific direction regarding therapy and counselling for the children, including how to select the counsellor, details of what counseling/ therapy was to address, a requirement that both parties fully cooperate with the counsellor/ therapist
6. Specific directions regarding the mother’s obligation to comply with the previous order to obtain therapy concerning her alienating behavior
7. A requirement that the counsellor/therapist’s fees be shared equally between the parties.

[11] The father appealed the Review Order. On June 28, 2021, the Court of Appeal dismissed the appeal. However, considering fresh evidence, it ordered a brief review hearing in one year’s time. The Appeal Order specified the purpose of the review hearing.

[12] In November 2021, the father commenced a contempt motion as a self-represented litigant. Once he retained counsel, a request was made, by way of motion, to substitute the contempt motion with a non-compliance motion. The request was granted, as I found no prejudice to the mother. Further, I exercised my discretion under rr. 2(5)(f) and 2(3) of the Family Law Rules, O Reg 114/99 (the “Rules”).

[13] In the mother’s cross-motion, brought in March 2022, she sought to change various provisions of the Trial Order and Review Order, including the method of selecting a therapist, the payment method relating to s. 7 expenses, and the method by which consent was to be provided regarding medical and health treatment for the children.

[14] The mother’s requested relief should have been raised in a Motion to Change. As such, they were dismissed. The only portion of the mother’s motion permitted to proceed was her request that the father pay all outstanding child support arrears for the children in the amount of $7,776, which I viewed as a compliance issue.

[15] As a result of several adjournments, the two motions were not heard until June 9, 2022.

[16] The review hearing ordered in the Appeal Order has not taken place. The timing of the ordered review hearing overlapped with these motions.

[17] The express purpose of the review hearing, as set out by the Court of Appeal, and the issues before me on these motions also overlap.

Issues to be Determined

[18] The collective alleged non-compliance is relative to:

• therapy and counselling for the children
• therapy and counselling for the mother
• in-person and virtual parenting time between the children and the father
• outstanding counselling fees and court costs
• child support arrears

[19] For each of the alleged acts of non-compliance, I must determine:

1. If there has there been a triggering event that would allow consideration of r. 1(8).
2. If so, is it appropriate to exercise discretion in favour of the respondent?
3. If not, what is the appropriate remedy(s)?

Analysis Regarding Triggering Event and Discretion

[20] In Ferguson v. Charlton, 2008 ONCJ 1, at para. 64, Spence J. set out a three-step process for approaching the application of motions brought under rr. 1(8) and 14(23). Relative to non-compliance under r. 1(8), the test is as follows:

1. Is there a triggering event that would allow consideration of r. 1(8)?
2. In the circumstances, is it appropriate to exercise discretion in favour of the non-complying party?
3. If not, what is the appropriate remedy?

[21] The onus is on the non-compliant party to show, on a balance of probabilities, why the sub-rule should not apply: Gordon v. Starr (2007), 2007 CanLII 35527 (ON SC), 42 R.F.L. (6th) 366 (S.C.J.).

[22] As cited by Conlan J. in C.J. v. E.J., 2021 ONSC 4853, at para. 6, Starr J. wrote in Price v. Putman, 2018 ONCJ 86, at paras. 36 and 37 that

discretion in favour of the noncompliant party will only be granted in exceptional circumstances. Put another way, it would take an extraordinary event to cause a court to exercise its discretion not to apply the rule in favour of the complainant.

[Additionally,] in deciding whether or not to exercise its discretion in favour of a non-complying party the court ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

[Citations omitted.]

Therapy and Counselling for the Children

[23] Paragraphs 8 through 11 of the Trial Order set out a structure determining the counselling and therapy the children were to obtain. They state:

8. For the purposes of the review referred to below and subject to her written consent, Dr. Dilys Haner of the London Clinic is appointed to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy them. Counsel for the Applicant is asked to seek that consent forthwith and is to ask for a response directed to the court and copied to counsel for the Applicant and Respondent. In the event consent is not forthcoming, a teleconference shall be convened by the court as soon as practicable.

9. Each of the parties and each child is ordered to attend for and fully cooperate in an assessment by Dr. Haner on the date(s), place(s) and in the manner(s) required by her. Further, the parties and children shall fully, promptly and accurately complete, execute and deliver in the manner and within the time requested, any and all documentation required by her.

10. The fees and expenses of Dr. Haner and any retainer required thereby, shall be shared equally by the parties and be paid forthwith upon request by Dr. Haner.

11. If possible, Dr. Haner shall file a report with the court in accordance with s. 30(7) of the Children’s Law Reform Act on or before July 31, 2020 and Dr. Haner is asked to file an interim report if she, at any earlier time, recommends that the parties and/or children immediately participate in any further reconciliation counselling.

[24] Paragraph 4 of the Review Order clarifies what is expected vis-à-vis the children’s counselling. It states:

4. Paragraph 1(a) of the Court’s September 25, 2020 Endorsement continues to be in effect. To be clear, the parties are ordered to immediately finalize their choice of counsellor from the names remaining on Dr. Haner’s list (Suderman, Reif and DeOliviera). If none are available, Dr. Haner is asked to provide further recommendation(s), one at a time, until a counsellor/therapist is prepared to confirm, in writing to Dr. Haner, the Applicant’s counsel and the Respondent, [mother], their willingness to treat the children for anxiety and assist them in establishing and building coping and emotion regulation skills, distress tolerance and ultimately, a positive relationship with both parents. The parties shall fully cooperate with the counsellor/therapist chosen in accordance with this paragraph, including without limitation, ensuring the children attend and participate fully in every session.

[25] Dr. Haner was appointed to assess and report to the court on the needs of the children and the ability and the willingness of the parties to satisfy them.

[26] Both parties and the children were ordered to attend and fully cooperate in an assessment with Dr. Haner.

[27] The parties were ordered to immediately finalize their choice of counsellor from the names remaining on Dr. Haner’s list. If no one was available, Dr. Haner was asked to provide further recommendations. The parties were ordered to fully cooperate with the counsellor/therapist chosen and/or required to ensure the children attend and participate in every session.

[28] In a letter dated January 18, 2021, Dr. Haner recommended: Dr. DeOliviera, Dr. Suderman, Dr. Reif, Ms. Bildfell, Drs. Harris and Ashbourne, and Ms. Reid.

[29] The father deposes that some of these recommended professionals were not accepting patients because of health reasons, COVID 19, and their full caseloads. Others worked out of the London Family Court Clinic (“LFCC”) and they could not secure the children for counseling until an outstanding account was paid by the mother.

[30] The father deposes that Dr. Harris is available in September 2022 and Dr. Ashbourne is available in October 2022 to provide therapy for the children.

[31] On November 9, 2021, some ten months after receiving Dr. Haner’s recommended professionals, the mother wrote to the father suggesting the children see Trish Lauer. The father deposes that he immediately responded requesting contact information. He called the number provided by the mother and he was directed to the confidential voicemail for Jennifer Durasin. The father submits that it is a conflict of interest for the children to undergo therapy with a therapist that is treating the mother.

[32] The mother deposes that she is a strong proponent for therapy and that she wants the children to get the assistance they need for the sake of their emotional and physical wellbeing, and to enable them to rebuild a relationship with her father.

[33] She claims both children are initially in need of individualized therapy, likely on a bi-weekly basis.

[34] She claims that neither party can afford the therapists suggested by Dr. Haner. She deposes that the parties could not afford to pay the hefty retainer fees for therapy for the foreseeable future as she believes that the children clearly need extensive and ongoing therapy.

[35] The mother deposes that she fully acknowledges the need to comply with the court orders regarding therapy, but the cost is prohibitive and if the parties are not able to continue with the chosen therapist, it would only hurt the children.

[36] The mother claims that she was unaware of the outstanding fees at LFCC.

[37] The mother suggests the parties participate in a Children's Aid Society (“CAS”) facilitated alternative dispute resolution, which she believes will enable them to come to an agreement for a therapist.

[38] The mother deposes that she has been working intensively with the CAS to find an alternate therapist the parties could afford. Appended to her affidavit is a letter from the CAS, dated May 6, 2021. The letter contains hearsay from the eldest child which was disregarded. The letter suggests the mother is working within the best of her ability to secure treatment for the children. The CAS offered to potentially fund some counseling session and expressed concerns about the children's complex needs and the fact that counselling could not continue for an extended period due to the mother’s financial constraints.

[39] The mother deposes that Trish Lauer’s practice is independent of Jennifer Durasin’s practice and that Trish Lauer is not involved in her care.

[40] The mother claims that she has suggested multiple alternatives to the father, who insists that the therapist be chosen from Dr. Haner’s list.

[41] The mother deposes that the father contacted Dr. Haner for a suggestion of names without providing any context of what was happening.

[42] The mother claims she has made every effort to consent to a therapist that is affordable. She claims to have sent over 100 messages to the father on the parenting app asking him to provide alternate names of therapists that he was willing to agree to. In support, she attached to her affidavit communication exchanges between the parties which took place on January 29, 2021 only.

[43] Not only have the children not commenced the counselling/therapy that was anticipated and expected when the Trial Order and Review Order were made, but the parties have not even finalized their choice of counsellor from the remaining names on Dr. Haner’s list.

[44] I accept that the father has attempted to retain the counsellor/therapist suggested by Dr. Haner. The mother has not selected a counsellor/therapist suggested by Dr. Haner. Instead, she claims that they are unaffordable and suggests alternate therapists outside the procedure outlined by the court. She elected to reach out to the CAS, and she wishes to engage in ADR with the hope a consent will be reached.

[45] The failure to select a counsellor/therapist as ordered by the court is the triggering event that would allow consideration of r. 1(8).

[46] Having consideration for the circumstances of this case, I must now determine if it is appropriate to exercise discretion in favour of the mother.

[47] I find the mother's position confusing and contradictory.

[48] She claims to be a proponent for counselling/therapy. She understands the importance that this type of professional help will play in re-establishing the children's relationship with their father. She concedes that the children need extensive on-going therapy.

[49] She claims that the therapists are unaffordable but recommends her own therapist/counsellor and reports to have recommended multiple other alternate professionals.

[50] She believes that despite allegedly sending over 100 messages on the parenting app regarding choices of counsellors/therapists, ADR will assist the parties in reaching a resolution.

[51] From these contradictory statements, I find the mother wishes for the children to engage in counselling/ therapy, but only with the counsellor/therapist of her choice. She does not wish to proceed with the ordered and detailed procedure set out for her and the father in the Trial Order and/or Review Order.

[52] The Trial Order requires the parties to equally share in the cost of therapy treatment for the children.

[53] There is no evidence that the mother appealed either the Trial Order and/or Review Order. An appeal would have been the appropriate recourse for the mother if she disputed the payment apportionment.

[54] Instead, she attempted to depart from the procedure ordered by the court and claims she does not have the financial means to pay for the services of professionals to assist the children.

[55] Neither the Trial Order nor the Review Order provides for ADR.

[56] It is unclear why the mother contacted the CAS.

[57] The evidence before me suggests that the CAS sent the mother a letter dated May 6, 2021. This letter concludes by stating that the current concerns do not meet the threshold for protection and the Society does not have the ability to enforce the court order. The CAS notes that sufficient assessment and supports have been provided to the family to ensure that children are safe in the care of the mother.

[58] A year later, and what looks like minutes before this matter was scheduled before me on May 25, 2022, the mother emailed the CAS. She requested help to figure out the date they were consulted. The mother indicated she was not able to get the full file. She requested the letters previously sent regarding the CAS’ consultation with its legal department regarding a motion to change. Her request is perplexing.

[59] The mother has not offered a credible explanation for her non-compliance. If her ability to pay for counselling/therapy prohibits her ability to comply with the orders of the court, it should have been raised immediately after the Trial Order or during the review hearing which led to the Review Order.

[60] In my view, the mother is attempting to divert attention from the main question by raising side issues. I decline to indulge these red herrings. I am not misled or distracted from the important and relevant question about her compliance with the long-standing, court-ordered process for selecting and implementing counselling or therapy of the children.

[61] Discretion shall not be afforded in favour of the mother regarding her non-compliance on the issue of therapy and counselling for the children.

Therapy and Counselling for the Mother

[62] Paragraph 17 of the Trial Order sets out the mother’s obligation to seek therapy concerning her alienating behaviour. It states:

17. The Respondent is ordered to immediately seek therapy concerning her alienating behaviour in order to gain insight into her conduct and enable her to develop and implement strategies that will result in the respondent promoting a meaningful, positive and loving relationship between the Applicant and the parties’ children. Proof of compliance with this term is to be filed with the court by no later than June 15, 2020.

[63] Paragraph 5 of the Review Order sets out that the mother was to immediately comply with para. 1 c) of the endorsement/para. 3 of the Temp. Order, which states:

3. The Respondent, [mother], shall take immediate steps to retain a person who will provide the therapy and other services outlined in paragraph 424(q) of my reasons issued on April 7, 2020 forthwith.

[64] Paragraph 5 of the Review Order states:

5. The Respondent, [mother] shall immediately comply with paragraph 1(c) of the September 25, 2020 Endorsement. The counsellor/therapist chosen shall be instructed by the Respondent, [mother] to:

i. Provide written confirmation of their involvement to Dr. Haner and the Applicant, [father’s], counsel;

ii. Acknowledge the Respondent, [mother], has provided them with a complete copy of the trial reasons and the reasons released on January 7, 2021;

iii. Confirm that the Respondent, [mother], has asked and that they will provide therapy to the Respondent concerning her alienating behaviour in order that she might gain insight into her conduct and develop and implement tools that will enable her to develop and implement strategies that will result in the Respondent consistently promoting a meaningful, positive and loving relationship between the Applicant, [father], on one hand and the children on the other. The Respondent shall fully cooperate with the counsellor/therapist chosen in accordance with this subparagraph including, without limitation, attending and participating fully in every session.

[65] The Trial Order set out specific and detailed requirements regarding the mother's therapy. The issues to be addressed at therapy were clearly set out. Proof of compliance was required to be filed approximately two months after the release date.

[66] Not having complied with the Trial Order, the mother was then ordered, first in the Temp. Order and later in the Review Order, to provide confirmation that she was receiving therapy concerning her alienating behaviour in order that she might gain insight into her conduct and develop and implement tools that will enable her to develop and implement strategies that will result in her consistently promoting a meaningful, positive and loving relationship between the father and the children.

[67] The father takes the position that the mother has wholly failed to comply with three orders on the issue of her therapy.

[68] The father received a letter from Jennifer Durasin, dated February 3, 2021, which states that the mother is being treated for trauma therapy, including behaviours that have impacted the children. In this letter, Jennifer Durasin confirms receipt of the reasons for judgement that led to the Trial Order and the Review Order.

[69] The father submits that the mother was not ordered to seek treatment for trauma therapy. She was ordered to receive treatment concerning her alienating behaviour, with a specific goal to gain insight into her conduct and to develop tools and implement strategies.

[70] The mother produced another letter from Jennifer Durasin, dated March 30, 2022, which confirms her awareness that the mother is to receive treatment for her alienating behaviour and acknowledging receipt of the Trial Order.

[71] The mother deposes that she has been seeing Jennifer Durasin, a registered psychotherapist, for bi-weekly sessions since November 13, 2020. She claims to have provided Jennifer Durasin with a copy of the Trial Order, the Review Order, and the reasons of Grace J.

[72] The mother claims to have advised Jennifer Durasin that she was ordered to undergo treatment specifically to address alienating behaviours. She claims to have discussed with her therapist the impact her stress and emotional difficulties have had on the children. They have also discussed her contribution to the negative view that the children take of their father. She claims that Dr. Haner acknowledged this in her assessment report.

[73] Jennifer Durasin filed an affidavit and deposes that she has been providing treatment to the mother since November 2020. She confirms receiving a complete copy of the trial reasons and the review reasons. She confirms having been advised by the mother that court-ordered treatment is specifically to address alienating behaviours. She deposes the mother has fully cooperated with her and participated fully in every session.

[74] Jennifer Durasin authored a letter dated March 22, 2022, which she attached as an exhibit to her affidavit. The letter was prepared in support of and with the informed consent of the mother. To summarize, the letter states:

• the mother gained insight into how her actions, as trauma responses, impacted her children separate from their own experience with her father and how these reactions may have contributed to negative perceptions of their father.
• the mother has expressed a desire for the children to have a healthy relationship with their father and has recognized how her reactivity to him at times, grounded in inter-relational trauma, had an impact.
• the mother put in place measures to ensure any potential reactions could not further disrupt the children's relationship with their father, such as having video calls supervised by a third party rather than herself.
• the mother has demonstrated she understood the need for therapy for her children to heal their relationship with their father and from several significant losses in their lives by actively seeking out and requesting recommendations for financially feasible professionals to help the family.

[75] The mother did not comply with the Trial Order. It was released in April 2020. She was to file confirmation regarding her therapy by June 2020. She did not contact the therapist until November 6, 2020 for an initial consultation. She sought therapy services to not only address her behaviour, as court ordered, but also to heal from the impacts of trauma.

[76] The question I am required to answer is: does the March 22, 2022 letter from the mother’s therapist support a finding that she has complied with the Review Order?

[77] While the letter does not import language specifically set out in the various court orders, it does address the goal of the order, which was for her to gain insight.

[78] The letter addresses one tool developed and implemented by the mother relating to video calls.

[79] The letter does not address if or how the mother has implemented strategies that will result in consistently promoting a meaningful positive and loving relationship between the children and their father. It only states she understood the need for therapy for her children to heal their relationship with their father.

[80] On a balance of probabilities, I cannot conclude that there has been a triggering event of non-compliance with the Review Order. While the therapist's letter does not parrot the language of the court order, I am satisfied that the intentions behind the court order have been understood by the therapist; certain, but not all, objectives have been addressed; and the mother has been attending therapy consistently.

[81] My finding should not be interpreted as condoning the mother's failure to comply with the Trial Order nor the timing of her production of her therapist's letter.

[82] The mother ought not to have waited until she was served the contempt/non-compliance motion to produce her therapist's letter.

[83] The mother ought to have complied with the Trial Order and provided confirmation of her therapy by June 2020.

[84] I have drawn an adverse inference from her overall conduct on this issue.

[85] The father perceives the therapy received by the mother since November 2020 has not yielded the results he desires. His perception may be accurate. While the court has the jurisdiction to order therapy, it cannot, despite its best efforts, control the way in which a recipient of such therapy responds or behaves.

[86] The mother and therapist must direct ongoing therapy on the development and implementation of additional tools and strategies that will result in the mother consistently promoting a meaningful, positive, and loving relationship between the father and the children.

The Father’s Parenting Time

[87] Paragraphs 4 to 7 of the Trial Order specify the extent of the respondent’s parenting time with the children. They state:

4. Commencing on Wednesday, April 15, 2020 at 7:30 p.m. (or at such other time as counsel may, before that date, agree in writing is more convenient to all) and on each Wednesday thereafter at the designated or other agreed upon time, the Applicant shall have video access to the children using Skype, FaceTime, WhatsApp or such other application as counsel may agree on their behalf, for a minimum of fifteen minutes.

5. Commencing on Sunday, May 3, 2020 at 5:30 p.m. (or at such other time as counsel may, before that date, agree in writing is more convenient to all) and on every other Sunday thereafter at the designated or other agreed upon time, the Applicant shall have further video access to the children using Skype, FaceTime, WhatsApp or such other application as counsel may agree on their behalf, for a minimum of fifteen minutes.

6. Commencing on Friday, June 19, 2020, and on alternate weekends thereafter, the Applicant shall also have in person access to the children. Alternate weekend access shall commence on Friday at 4:30 p.m. and end on Sunday at 7:30 p.m. The Respondent shall be responsible for drop-off at the Applicant’s residence and shall facilitate the exchange by standing outside her vehicle with the children. The children are to be left safely in the care of the Applicant at which time the Respondent shall immediately depart alone. The Applicant shall be responsible for the return of the children to the Respondent’s residence.

7. During the Applicant’s weekend access, the Respondent shall not attempt to contact or communicate in any way with the children and the children shall not attempt to contact or communicate in any way with the Respondent, unless the Applicant agrees to allow it and then only on the occasion, in the manner and to the extent he agrees.

[88] Paragraphs 12 and 13 of the Review Order ratify the virtual parenting time as set out in the Trial Order and set a new commencement date for the in-person parenting time. They state:

12. The Applicant, [father’s], virtual access to [D.M., born 2008, and S.M., born 2011], shall continue in accordance with paragraphs 424 d) and e) of the trial reasons released April 7, 2020 (now paras. 4 and 5 of the April 17, 2020 order).

13. The Applicant, [father’s], in-person access to [D.M., born 2008, and S.M., born 2011], in accordance with paragraph 424 f) of the trial reasons shall commence on June 4, 2021 and paragraph 424 g) of the trial reasons shall then take effect (now para. 6 of the April 17, 2020 order).

[89] The father deposes that since virtual parenting time was ordered in April 2020, he has not had visual contact with the children.

[90] He submits that the mother refuses to assist in facilitating the calls in any way. He claims she does not encourage the children to speak or sit in front of the camera.

[91] The mother deposes that the virtual parenting time has been occurring regularly, every Wednesday evening and every other Sunday, in accordance with the Review Order. She claims the father has failed to call on several occasions and that the children refused to come on camera to speak to their father.

[92] The mother alleges that she consistently and strongly encourages the children to speak with their father to rebuild their relationship with him. She denies that the children are not present during the virtual parenting time.

[93] The father deposes that on September 1, 2021, he made a video call which went unanswered. He preceded to call again and sent two messages to the mother on the parenting app. He claims the mother responded by indicating her phone was on silent because of work commitments.

[94] The father deposes that the mother sent him a message on January 27, 2021 indicating she was removing herself entirely from the virtual calls stating she has had various friends monitoring the calls.

[95] The mother alleges that the CAS recommended that she remove herself from the video calls.

[96] The mother deposes that she arranged for close friends to be present to facilitate the virtual parenting time after the father yelled profanities at her and demanded that she force the children to come on camera and speak. She claims that she first consulted with her therapist and the CAS worker. She believes that this an appropriate strategy to decrease the stress levels for the children during the calls.

[97] The mother believes that to insist and request a court order that she be present to facilitate virtual parenting time calls is a continuation of the father’s coercive and controlling behaviour.

[98] The mother claims that short of physically forcing the children, there is nothing she can do to force them to be in front of the camera or to make them speak.

[99] She suggests that the children's mental health challenges and the risk that they might self-harm prohibits her from punishing them or withdrawing privileges to force compliance.

[100] Since April 20, 2022, the father deposes that he contacted the children on the mother’s telephone nine times to have virtual parenting time. He deposes that in eight of the nine instances, the video calls were answered, however the phone was pointed upward towards the sky or ceiling and neither child uttered a word.

[101] The father does not believe that the children were present when the calls were answered. He deposes that there were other instances when video calls were not answered at all despite him contacting the mother and communicating with her on the parenting app about the unanswered calls.

[102] The father denies yelling or speaking profanities during video calls with the children.

[103] The father takes the position that the mother has intentionally deleted his phone number from call logs provided to the court in an effort to mislead the court. He attaches to his affidavit his phone call logs in support of his position.

[104] Regarding in-person parenting time, the father deposes that the children were not dropped off at his home on June 4, 2021, as required by the Trial Order.

[105] He claims that he called the mother numerous times and sent her a message on the parenting app. According to him, a half-hour after the scheduled drop-off time, the mother wrote to him indicating that the court order stipulated a period of six months’ therapy prior to in-person parenting time.

[106] The mother believes, based on conversations with the CAS, the court orders state that the children need to be in therapy prior to the father’s in-person parenting time.

[107] The father sought legal advice to clarify if his in-person parenting time was contingent on therapy. He claims that the mother has deliberately misinterpreted the order.

[108] In oral submissions, the mother confirmed that there has been no visual or auditory contact between the father and the children.

[109] There is no dispute that the children have not been produced for any of the court-ordered parenting time.

[110] As such, I can only conclude that there has been a triggering event that would allow consideration of r. 1(8).

[111] I must now determine, in the circumstances of this case, if it is appropriate to exercise discretion in favour of the mother.

[112] The mother submits that she is doing everything in her power to help the children. The bulk of her argument rests on the status of her current mental state and her post-traumatic stress disorder (PTSD).

[113] The mother goes into detail about the history of abuse perpetrated by the father. She provides historic examples dating back to October 2017. She sought help from the London Abused Woman Centre prior to separating and has been receiving services there on a regular basis.

[114] Her material sets out the impact of the abuse, which she claims to have affected her gravely, and states that the stress of litigation has considerably worsened her trauma.

[115] She deposes that she does regret some of her conduct. She claims the extreme stress of being self-represented, financial constraints and her undiagnosed PTSD impacted her ability to process information and communicate effectively, which led to a “fight” response when she felt triggered or threatened.

[116] The mother acknowledges that she has had difficulties self-regulating and has benefited greatly from the therapy. She deeply regrets the impact her poor self-regulation had on the children.

[117] The mother deposes that she found the Review Order confusing. She claims that as someone who suffers from PTSD, one of her trauma symptoms is difficulty processing information, especially when it is presented in a complex, non-linear manner.

[118] She claims that a copy of the Review Order was issued with several handwritten revisions due to apparent errors in the draft submitted to the court. She claims she was confused by this, she noted that she was not represented by legal counsel during or after the review hearing

[119] The father takes the position that the mother’s allegation of abuse is res judicata and unequivocally and patently false. He claims her trial lawyer admitted that there was no supporting evidence. The father deposes that the mother’s historical narrative, which she is relitigating, is an abuse of process and should be struck from the court record.

[120] The mother misinterpreted the Trial Order and the Review Order. Not only did she misinterpret the orders, but she also relied on incorrect information from others who also misinterpreted the orders.

[121] I do not accept her submissions to be a credible explanation for her non-compliance.

[122] I understand that the mother takes the position that this legal process escalated her PTSD symptoms. I also acknowledge the grief and trauma she faces with the loss of her own mother. She clearly has past and current emotional distress.

[123] Though unfortunate for her, I do not find the mother’s PTSD diagnosis is an extraordinary event to cause me to exercise discretion in her favour.

[124] However difficult it may be for her, the mother’s past, present, or current mental health cannot usurp the role she plays in ensuring the best interests of the children are met, both currently and in the long-term.

[125] “It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means”: Stuyt v. Stuyt, 2009 CanLII 43948 (ON SC), 71 R.F.L (6th) 441 (ON SC), at para. 62. This is not just a parent’s duty to the court, but also to their children:”[i]t is also the role of parents to instil in their children a respect of the law and of legal institutions. A parent who does not do so does a disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life”: Stuyt, at para. 62.

[126] In Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667, at para. 28, the Court of Appeal stated:

Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order." [Citations omitted.]

[127] All the evidence, both historical and current, supports a finding that the children are in a fragile mental state. According to the mother, this prohibits her from forcing them to attend parenting time. There is insufficient evidence before me to accept this position.

[128] The mother's rationale does not absolve her of her duty to abide by court orders. She has a positive obligation to ensure that she and the children comply with parenting time orders.

[129] The mother has failed to demonstrate that she has done all she reasonably can do to ensure compliance with court orders. In particular, I note that she has not ensured that the children have the appropriate mental health supports.

[130] Discretion will not be afforded to the mother in the circumstances of this case relative to the issue of parenting time with the father.

Counselling Fees and Court Costs

[131] The mother was ordered to pay costs to the father in the amount of:

a) $88,321.03 pursuant to the Trial Costs Order; and

b) $20,000 pursuant to the Review Costs Order.

[132] Pursuant to paragraph 11 of the Review Order, fees and expenses for the counsellor/ therapist and any retainer required was to be shared equally by the parties and paid forthwith upon request by the service provider.

[133] There was an outstanding account with the London Family Court Clinic (“LFCC”) in the amount of $742, representing the mother’s one-half share.

[134] On June 1, 2022, the mother paid $42 towards the outstanding fees owing to the London Family Court Clinic (LFCC). The total remaining amount owing is $700.

[135] The father submits that this payment was the first since the bill was first provided to the mother in or around January 11, 2021.

[136] On June 1, 2022, the mother paid $100 towards the outstanding Trial Costs Order. The payment was sent via e-transfer with indication that additional payments will be made on the first of each month. The Father submits this payment was the first since the Trial Costs Order made on June 4, 2020.

[137] Taking into account the Trial Costs Order and the Review Costs Order and deducting the nominal $100 payment made eight days before these motions were argued, the mother still owes $108,221.03. The bulk of this amount has been owed for well over two years.

[138] The mother deposes that after separating, she had no money and a very poor credit rating.

[139] She claims she was unable to get a mortgage from the bank and that she obtained a private loan from an elderly acquaintance who had significant savings. She claims to be paying off this loan in the amount of $500 per month.

[140] The title remains in her name. In exchange for the loan, she claims she agreed her equity would be capped at $142,000. If the house is sold, she claims that her equity is only $142,000. There is no documentary evidence in support of this arrangement.

[141] The mother claims that if the house was sold now, she would still be in significant debt, with no money to rent a place to live or to afford a down-payment to purchase a new home, even if she qualified for a mortgage, which she claims she would not. She deposes that she would be forced into bankruptcy and geared-to-income housing.

[142] Despite the mother’s last-minute effort to make payments on the outstanding amounts owing, the bulk of each amount owing remains due and payable, and this has been the case for some time.

[143] The mother had the LFCC account for approximately a year and a half prior to making payment.

[144] It took two years for the mother to make a single payment towards the Trial Costs Order.

[145] The mother's longstanding failure to pay the above noted amounts constitutes a triggering event that would allow consideration of r. 1(8).

[146] I have considered the mother's submissions in oral argument, specifically her statement that she can't make money appear. I have also considered her current financial situation as set out in her affidavits and financial statements.

[147] No evidence has been presented to suggest that there has been an extraordinary event to cause the court to exercise its discretion in favour of the mother.

[148] In coming to this conclusion, I have considered the history in the course of the litigation and the length of time the outstanding payments have been owing.

Child Support Arrears

[149] The mother submits that the father owes outstanding child support arrears in the amount of $7,776.

[150] She deposes that the father failed to make payments between January 2021 and December 2021, inclusive. She acknowledges his efforts to clear his arrears in January 2020 but claims he improperly deducted her portion of ongoing fees for the services of Ms. DeVeto from his miscalculated overpayment.

[151] She claims deducting therapy costs from child support is inappropriate and not in the children's best interests.

[152] Pursuant to the Trial Order, the father was to pay the mother child support in the amount of $939 per month based on income of $61,577. This order also required the mother to reimburse the father $3,019.82 for fees he paid to Ms. DeVeto for her services.

[153] The Review Order amended the child Support provisions such that the father pays the mother $745 per month based on income of $49,427.33. This order provided that the father be credited the amount of $207 as of January 1, 2021 due to overpayment of child support made in 2020. This order also set out that the mother had to reimburse the father $3,384.53 on Ms. DeVeto’s account.

[154] The father deposes that in November 2021, the Family Responsibility Office (FRO) sent him a letter declining to enforce a support order. He advised the mother that he would make payments by way of e-transfer.

[155] He submits that he sent an e-mail to the mother advising her of his intention to pay via e-transfer, putting her on notice that he would provide her with backpay payments for child support for March 2021 to December 2021 in the amount of $7,450 (10 months x $745) less:

a) the credit owed to him in the amount of $207;

b) the amount of $3,384.53 for Ms. DeVeto’s account; and

c) child support payments for the month of January 2021 in the amount of $745

for the net amount of $4,603.47.

[156] I have reviewed the mother’s arrears of child support chart appended to her affidavit. I have also considered the e-transfer receipts appended to the father’s affidavit. I am satisfied that there are no child support arrears owing to the mother.

[157] I am not required to decide whether deducting the cost of therapy services from child support is in the children's best interests.

[158] The motion brought by the mother only requires me to determine if there has been a triggering event that would allow consideration of r. 1(8). There has not. The analysis ends here.

[159] The mother’s motion is dismissed.

What Remedy is in the Children’s Best Interest?

[160] Given the mother’s non-compliance with the court’s orders respecting parenting time, children's therapy, and costs, I am required to determine what remedy is in the children’s best interest.

[161] The broad language of r. 1(8) grants the court authority to make “any order that it considers necessary for a just determination of the matter” in the face of non-compliance.

[162] As stated by the court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, at para. 49:

Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”. [Citations omitted.]

[163] The relief itemized in r. 1(8) can be procedural and substantive. Bouchard goes on, at para. 51:

Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

[164] Where such a failure to comply exists, “[j]udicial response to a party’s failure to respect the court process and court orders should be strong and decisive”: Levely v. Levely, 2013 ONSC 1026, at para 13. Levely continues, at para. 13, “[t]he judge should be as creative as necessary in crafting remedies so as to ensure that the non-compliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”.

[165] This case is unique in that Grace J. made a clear finding of parental alienation by the mother. Despite great effort by the court to cure this alienation, it continues.

Remedy Regarding Parenting Time

[166] The father seeks, amongst other things, make-up parenting time.

[167] Bouchard, at para 56, provides that, “[w]here one parent wrongfully withholds a child from the other, in violation of a court order, r. 1(8) provides quick access to a remedy, including for example, make-up time with the child.”

[168] Given the children’s longstanding, immediate, and untreated mental health concerns, however, I cannot find that additional parenting time is in their best interest.

[169] Though fault does not rest with the father, he has not had visual or auditory parenting time with the children in four years.

[170] The children continue to suffer emotional harm caused by their mother's behaviour. Her parental alienation is frustrating the parenting order made, she is non-compliant, and she does not deny this.

[171] There is no evidence before me to suggest that it is not in the children's best interests, at the very least, for the father's parenting time to occur virtually. This is long overdue.

[172] I repeat the order made by Grace J. as it relates to virtual parenting time. To be clear, I am not varying or altering the virtual parenting time which was previously ordered. The virtual parenting time shall occur in the same frequency and duration as previously ordered, and it will be ramped up in a similar fashion.

[173] Effective Wednesday, August 3, 2022 at 7:30 p.m., and on each Wednesday thereafter, the father shall have virtual parenting time with the children for a minimum of 15 minutes.

[174] Effective Sunday August 21, 2022 at 5:30 p.m., and on every other Sunday thereafter, the father shall have further virtual parenting time with the children for a minimum of 15 minutes.

[175] If the mother’s past pattern of conduct continues as it has since April 2020, the father's parenting time may not be realized.

[176] To ensure the mother’s strict compliance with the parenting time orders, if she breaches the terms set out in paragraphs 173 and 174, the father may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

[177] To further ensure strict compliance with the parenting time orders, I take direction from Chappel J. in Jackson v. Jackson, 2016 ONSC 3466, at para 63: the mother’s obligation in regard to parenting time “goes beyond simply accommodating it, making the children available for parenting time and encouraging them to comply. Rather, the mother must require that parenting time occur and actively facilitate it” (Emphasis in the original).

[178] Chappel J. continues, at para. 63,

Actively promoting and facilitating compliance with a parenting order requires the mother to take concrete measures to apply normal parental authority to have the children comply. In determining whether appropriate measures were taken, the court should consider whether the mother did the following:

i. Did she engage in a discussion with the children to determine why the children are refusing to go?

ii. Did she communicate with the father or other people involved with the family about the difficulties and how to resolve them?

iii. Did she offer the children an incentive to comply with the order?

iv. Did she articulate any clear disciplinary measures should the children continue to refuse to comply with the order? [Citations omitted].

[179] The mother deposes that short of physical force, there is nothing she can do to force the children to appear in front of the camera or make them speak. She claims that the children are now almost the same size as her. She is concerned about their mental health challenges and their risk of self harm.

[180] The mother fails to acknowledge the role she may have played in their ongoing mental health challenges.

[181] She claims she cannot punish them or withdraw privileges to force compliance. She does not provide a reasonable, or any, explanation as to why.

[182] The mother deposes that she has consistently and strongly encouraged the children to speak to their father and rebuild a relationship with him. She does not provide any examples of what is being said, or how often, or when it is being said.

[183] I questioned what message the mother thinks she may signal to the children when she decides not to be present for the virtual calls. She claims she leaves to decrease stress levels. Her attendance is required during the virtual parenting time.

[184] How she copes and deals with her personal issues can be the subject of her ongoing counselling and therapy. She is reminded that she has a duty to act in the best interest of the children, and that should supersede her own perceived best interest.

[185] There is no evidence before me to suggest that the mother has taken any concrete steps to apply normal parental authority to have the children comply with any of the parenting time orders made. She has not done all that she reasonably can to ensure compliance with any of the parenting time orders made to date.

[186] I can only infer that the mother will continue non-compliance in the same manner.

[187] To assist in realizing the father’s virtual parenting time, the following directions are provided, and orders shall so issue.

[188] The father shall promptly initiate the virtual parenting time on the days and times described.

[189] The mother shall ensure that the children are available for their virtual parenting time five minutes prior to the scheduled start time.

[190] The mother shall ensure that the children are visibly present during the virtual parenting time, specifically that their faces are in camera range.

[191] The mother shall not undermine, in any way, subtle or overt, the father's parenting time. Instead, it shall be expected that the mother act in common cause, in the same manner expected of parents in an intact family.

[192] The mother shall not discuss with the children, or with another party, in the presence of the children, current or past legal proceedings or issues between the parties relating to current or past legal proceedings.

[193] The mother shall not permit or acquiesce in the children being disrespectful to the father and she shall take appropriate action to support the father if he is being treated disrespectfully by the children during the virtual parenting time.

[194] The mother shall assist the father in rectifying the children's behaviour if it is disrespectful or non-compliant and the parties shall ensure that they always procure healthy and respectful behaviour towards both parents.

[195] Neither parent will disparage the other parent in the community generally or to anyone who has direct or indirect involvement with the children.

[196] Neither parent will suggest, encourage, acquiesce to, or permit the children to record their interaction or parenting time with the other parent.

[197] The mother shall not state to the children or otherwise communicate to the children directly or indirectly that she was or is being abused by the father.

[198] If the mother is faced with resistance from the children, she will document what discussions she engaged in with the children to determine why they are resisting. She will encourage the father to speak to them about their resistance. If required, she will document what incentives she offered the children to comply with this court order. She will document any disciplinary measures imposed if their resistance continues.

[199] If required to document details set out in paragraph 198 above, the mother shall immediately share this information with the father and her therapist/counsellor to assist her with the development and implementation of strategies that will promote a meaningful, positive, and loving relationship between the father and children. She will also share this information with the children’s therapist/counsellor appointed by this court.

[200] The mother engaged in tactics to prevent in-person parenting time.

[201] She misinterpreted the Trial Order and the Review Order. She relied on other people’s misrepresentations of the order.

[202] In-person parenting time ought to have commenced and it did not. As a result, four years have now passed since the children have seen their father.

[203] As noted by Grace J. in his January 2021 Reasons for Decision, the mother’s “attitude and behaviour has not changed since the release of the trial decision. Her self-created game continues. Cooperation is surface deep only.”.

[204] I am most concerned about the effects the last two years have had on the children.

[205] In the two years since the Trial Order was made, the father has had another child. The children are unaware of this child.

[206] The evidence before me suggests that the children may feel replaced and that that this issue needs to be carefully considered in terms of the timing and the way in which the children are introduced to their new half-sibling.

[207] The father did not tender any evidence to address concerns raised by Dr. Haner, set out in the Reasons on Review of January 2021, and reiterated by the Court of Appeal.

[208] The children remain vulnerable. They remain in need of counselling and therapy. Four years have passed since they have seen their father. The foregoing is the result of the mother's actions. If counselling and therapy for the children would have commenced as ordered by the court on two occasions, these issues could have been addressed.

[209] The fact remains, the children are unaware that they have a step-sibling. No evidence has been tendered regarding this issue, which was flagged by this court in January 2021. The father should acknowledge that this issue may contribute to any animosity or hostility that the children have.

[210] The father’s in-person parenting time shall commence on a date to be determined by the court after receiving input from Dr. Haner and after addressing the issue of the children’s step-sibling.

[211] To be clear, this does not give the mother the right to decide when in-person parenting time will occur; that is for the court to decide with direction from the therapist/counsellor.

[212] In the event that the mother breaches the terms set out in paragraphs 189-199, the father may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

Remedy Regarding Children’s Therapy

[213] Grace J. found that it was abundantly clear to all that the two children urgently need mental health counselling.

[214] The parties were ordered to immediately finalize their choice of counsellor from a list of recommended alternatives provided by Dr. Haner.

[215] Despite Grace J.’s directions that the children commence pursuing counselling as “expeditiously as is humanly possible”, this has not occurred.

[216] I reject the mother’s submission that she cannot afford therapy. She recommends a therapist that charges $160/hr which she claims is considerably lower than that charged by therapists at LFCC.

[217] The father and Dr. Haner suggest therapists who charge $225/hr. The $65 difference, shared equally between the parties, is a negligible excuse for non-compliance.

[218] I have placed considerable weight on Dr. Haner’s January 18, 2021 letter. I summarize and highlight some key statements contained within Dr. Haner’s letter:

• She expressed continued concern that the mother is not able to protect the children from adult information, whether she or someone in her circle is the source.
• Given the mother’s continued reversal of progress reported by the Court, she has no reason to believe their mother will fulfill the court’s order (as of January 2021).
• Case management without judicial oversight is almost certain to backfire. Negative consequences considered by Dr. Haner include, but are not limited to: i) the mother will continue to negatively influence the children's mental health intervention with a qualified child therapist/counsellor; ii) the children will continue to be exposed to ongoing drama and conflict due to the mother’s inability to have them attend appropriate mental health treatment; and iii) the children will be at risk of becoming further entrenched in their beliefs that their father is unsafe and their mental health will continue to deteriorate.
• She opines that no further progress will be made by the mother, and therefore also by the children, without consistent oversight of a judge sufficiently familiar with the details and progress of the case, to whom she can report and on whom the parties can rely to enforce consequences for non-compliance.
• She does not believe the mother will comply with treatment without legal threat of consequence, given her historical and recent behavior with treatment providers, her social media comments, and the reported reversal of her nascent progress.

[219] The mother possesses characteristics that I find to be manipulative. She creates her own narrative focusing on herself as a victim. Her alienating behaviour is informed by her attitude toward the father and her beliefs about what is in the children’s best interest.

[220] She deposes that her therapist, Jennifer Durasin, has been very clear about the effects of the abuse and vexatious litigation perpetrated by the father and his family on her and, by extension, the children. She fails to mention her two motions brought before the court after the Review Order was made.

[221] She claims the emotional stress is causing an impact on the children. She claims the father and his family, through their actions, undermine the very relationship they are trying to foster. She fails to provide any evidence of the efforts made on her part to reduce the impact of the emotional stress on the children.

[222] The mother consistently points the finger towards the father and his family. She lacks self-awareness or the ability to recognize what role she plays in the children's past and current mental health issues.

[223] She claims to be intimidated by correspondence received from the father's counsel suggesting it causes her emotional distress. She claims the father's counsel mocked her PTSD diagnosis in written communication. I have reviewed the communication and find nothing to support her allegation.

[224] The mother has not complied with earlier directions respecting therapy and counselling for the children. The attempts to rectify the problem through repeated court attendances and orders has not succeeded. In fact, the situation may have worsened. I take the view that more proactive steps are needed.

[225] Dr. Harris is available to provide therapy for the children in September 2022 and Dr. Ashbourne is available in October 2022. Dr. Haner also recommended Ms. Bildfell if she is available.

[226] Whoever among Dr. Harris, Dr. Asbourne, and Ashley Bildfell can provide services more expeditiously shall be appointed to provide therapy/counselling services for the children.

[227] The father shall promptly contact LFCC to commence the intake process. The parties shall promptly and accurately execute and deliver any and all paperwork required to commence the counselling/therapy.

[228] The parties shall ensure that the children attend all therapy/counselling sessions as directed by the counsellor/therapist on a timely basis.

[229] The parties shall ensure they follow any and all recommendations made by the counsellor/therapist on a timely basis and without delay.

[230] The children's participation in therapy/counselling shall take priority over any other scheduled or unscheduled activities.

[231] Dr. Haner shall act as case manager and shall oversee the counselling/therapy set out above, with a view to achieving the ultimate objective of establishing a positive relationship between the children and the father.

[232] The mother shall immediately pay her outstanding account with LFCC.

[233] If she does not immediately pay the LFCC and this acts as a barrier to the children starting therapy/counselling, the father shall pay her outstanding balance and can claim the amount as costs owing to him under r. 1(8)(a).

[234] All costs associated with the children's therapy/counselling services and Dr. Haner shall continue to be paid equally. The mother shall pay 50% of the children's therapy/counselling costs and 50% of Dr. Haner’s costs as special and extraordinary expenses. The father shall report these costs (one or more) to the Family Responsibility Office, for the children, D.M., born 2008, and S.M, born 2011.

[235] The court may reallocate this cost between the parties based on reports from the therapist/counsel and/or Dr. Haner, as to the parties’ and the children's participation in and compliance with the process, and the parties’ compliance with the terms of and spirit and intent of this order.

[236] The parties shall ensure that any future LFCC accounts are paid on a timely basis to ensure continuity of services. They will fund whatever retainer is required on a timely basis.

[237] The mother shall not instruct, suggest, or coach the children on what to say to the therapist/counsellor or to any other person retained to assist the family.

[238] Neither party will take the children to another mental health practitioner or therapist/counsellor without the consent of the other parent.

[239] In the event that the mother breaches the terms set out in paragraphs 227-230, 232, 234, 236-238, the father may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

[240] I shall remain seized of this matter to ensure judicial oversight and to monitor the mother’s compliance.

[241] Dr. Haner shall have the ability to directly initiate a case conference meeting with me and the parties if she determines that she needs further direction, powers, or advice to the parties and the children, or if she determines that the process is being frustrated or impaired by the actions or inaction of any party or the children.

[242] Dr. Haner shall issue written updates from time to time regarding the parties’ adherence to the terms of this court order.

Remedy Regarding Non-Compliance with Payment of Costs & LFCC fees

[243] R.1(8)(e) explicitly empowers the court to order that a party who has not complied with prior orders be disentitled to further order from the court unless the court orders otherwise.

[244] In this case, two final orders have been made. This remedy is available as r.1(8) states that 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 (emphasis added).

[245] Further, I have considered the primary objective of the Rules, the direction provided when dealing with cases justly, the court's duty to promote the primary objective, and the court’s duty to manage cases to promote the primary objective: see r. 2(2)-2(5).

[246] Rule 14(21) further provides that if a party tries to delay the case or add to its costs or in any other way abuses the court’s process by making numerous motions without merit, the court may make an order that the party not make any other motions in the case without the court's permission.

[247] I have considered the mother’s behaviour during these proceedings and her failure to comply with several provisions of various court orders. This litigation has been ongoing and extensive. It is entirely appropriate to make an order restricting the mother from returning to court until such time as she is compliant with the orders made.

[248] The fact that the mother has made a nominal payment toward the cost orders and the LFCC account in the month these motions were argued suggests that she knows there are consequences for her failure to pay. She is not saved by the payment.

[249] It would be unjust to allow the mother to obtain any further order from the court unless the court orders otherwise or until she has paid the outstanding costs orders. However, to preserve her right to pursue her claims for adjudication by the court, the following leave procedure shall be followed and maintained until further order of this court.

[250] The mother is not permitted to request a further order from the court unless she first obtains leave of the court as set out in paragraph 251 below.

[251] Leave procedure:

a) the mother shall serve and file a form 14B motion setting out briefly the relief to be sought from the court. She is permitted to serve and file one affidavit not exceeding five pages, with exhibits.

b) the form 14B motion shall not specify a return date and shall be considered in chambers by me, unless directed otherwise.

c) the father is permitted to file one affidavit not exceeding five pages with exhibits and must comply with a timeline set out in r. 14(11.4).

d) the mother is not permitted to serve and file a reply pursuant to r. 14(1.6), unless the court directs otherwise.

[252] The parties have motions returnable August 12, 2022. The mother is seeking a restraining order against the father and the father is seeking an order restricting the mother from bringing further motions.

[253] In view of the orders made by me today, the father's motion seeking an order restricting the mother from bringing further motions shall be dismissed without costs.

[254] I have reviewed the mother’s material in support of her claim for a restraining order. In keeping with the court’s duties to deal with as many aspects of the case as possible on the same occasion (r.2(5)(f)), to identify issues and dispose of those that do not need full investigation (r.2(5)(a)), to deal with the case in ways that are appropriate to its importance and complexity (r.2(3)(c)), saving time and expense (r.2(3)(b)), and giving appropriate court resources to the case while taking into account the need to give resources to other cases (r.2(3)(d)), the mother shall not be permitted to proceed with the motion.

[255] The August 12, 2022 motion date shall be vacated.

Review Hearing Order by the Court of Appeal of Ontario

[256] In its June 28, 2021 decision, the Court of Appeal ordered a brief review hearing in one year. The purpose of the review hearing is consistent with what I have sought to achieve in this decision – to preserve the incentive of the mother to comply with the counselling and therapy orders and to start to promote the children's relationship with the father to the best of her ability.

[257] The review hearing was ordered in light of Dr Haner’s refusal to continue case managing absent continued judicial oversight. I have addressed the subject of judicial oversight in this decision.

[258] Apart from stating its objective, the Court of Appeal did not offer any guidance with respect to the review hearing.

[259] The objectives as contemplated by the Court of Appeal have been met and no further review is required.

Orders

[260] It is declared that the Respondent has been non-compliant with paragraphs 4-7, and 10, of the Trial Order, paragraphs 4, 11, 12, and 13 of the Review Order, the Trial Costs Order, and the Review Costs Order.

[261] Accordingly, this court orders:

1. Effective Wednesday, August 3, 2022 at 7:30 p.m., and on each Wednesday thereafter, the Applicant shall have virtual parenting time with the children for a minimum of 15 minutes.

2. Effective Sunday August 21, 2022 at 5:30 p.m., and on every other Sunday thereafter, the Applicant shall have further virtual parenting time with the children for a minimum of 15 minutes.

3. To ensure the Respondent’s strict compliance with the parenting time orders, if she breaches the terms set out in paragraph 1 and 2, the Applicant may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

4. The Applicant shall promptly initiate the virtual parenting time on the days and times described above.

5. The Respondent shall ensure that the children are available for their virtual parenting time five minutes prior to the scheduled start time.

6. The Respondent shall ensure that the children are visibly present during the virtual parenting time, specifically that their faces are in camera range.

7. The Respondent shall not undermine, in any way, subtle or overt, the Applicant’s parenting time. Instead, it shall be expected that the Respondent act in common cause, in the same manner expected of parents in an intact family situation.

8. The Respondent shall not discuss current or past legal proceedings or issues between the parties relating to current or past legal proceedings with the children or with another party in the presence of the children.

9. The Respondent shall not permit or acquiesce in the children being disrespectful to the Applicant and she shall take appropriate action to support the Applicant if he is being treated disrespectfully by the children during the virtual parenting time.

10. The Respondent shall assist the Applicant in rectifying the children's behaviour if it is disrespectful or non-compliant, and the parties shall ensure that they always procure healthy and respectful behaviour towards both parents.

11. Neither parent will disparage the other parent in the community generally or, in particular, to anyone who has direct or indirect involvement with the children.

12. Neither parent will suggest, encourage, acquiesce in, or permit the children to record their interaction or parenting time with the other parent.

13. The Respondent shall not state to the children or otherwise communicate to the children directly or indirectly that she was or is being abused by the Applicant.

14. If the Respondent is faced with resistance from the children, she will document what discussions she engaged in with the children to determine why they are resisting, she will encourage the Applicant to speak to them about their resistance and, if required, she will document what incentives she offered the children to comply with this court order as well as any disciplinary measures imposed if their resistance continues.

15. If required to document details set out in paragraph 14 above, the Respondent shall immediately share this information with the Applicant and her own therapist/counsellor to assist her with the development and implementation of strategies that will promote a meaningful, positive, and loving relationship between the father and children. The Respondent will also share this information with the children’s therapist/counsellor appointed by this court.

16. The Applicant’s in-person parenting time shall commence on a date to be determined by the court after receiving input from Dr. Haner and after addressing the issue of their step-sibling.

17. In the event that the Respondent breaches the terms set out in paragraphs 5-15, the Applicant may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

18. Whoever among Dr. Harris, Dr. Asbourne, and Ashley Bildfell can provide services most expeditiously shall be appointed to provide therapy/counselling services for the children.

19. The Applicant shall promptly contact LFCC to commence the intake process. The parties shall promptly and accurately execute and deliver any and all paperwork required to commence the counselling/therapy.

20. The parties shall ensure that the children attend all therapy/ counselling sessions as directed by the counsellor/therapist on a timely basis.

21. The parties shall ensure they follow any and all recommendations made by the counsellor/therapist on a timely basis and without delay.

22. The children's participation in therapy/counselling shall take priority over any other scheduled or unscheduled activities.

23. Dr. Haner shall act as case manager and shall oversee the counselling/therapy set out above, with a view to achieving the ultimate objective of establishing a positive relationship between the children and the Applicant.

24. The Respondent shall immediately pay her outstanding account with LFCC.

25. If she does not immediately pay the LFCC and this acts as a barrier to the children starting therapy/counselling, the Applicant shall pay her outstanding balance and can claim the amount as costs owing to him under r.1(8)(a).

26. All costs associated with the children's therapy/ counselling services and Dr. Haner shall continue to be paid equally. The Respondent shall pay as special and extraordinary expenses 50% of the children's therapy/counselling costs and 50% of Dr. Haner’s costs. These costs will be reported by the Applicant to the Family Responsibility Office for the children D.M., born 2008, and S.M., born 2011.

27. The court may reallocate this cost between the parties based on reports from the therapist/counsellor and/or Dr. Haner. In particular, the court will consider the parties’ and the children's participation in and compliance with the process, and the parties’ compliance with the terms, spirit, and intent of this order.

28. The parties shall ensure that any future LFCC accounts are paid on a timely basis to ensure continuity of services. They shall fund whatever retainer is required on a timely basis.

29. The Respondent shall not instruct, suggest, or coach the children on what to say to the therapist/counsellor or to any other person retained to assist the family.

30. Neither party will take the children to another mental health practitioner or therapist/counsellor without the consent of the other parent.

31. In the event that the Respondent breaches the terms set out in paragraphs 19-20, 24, 26, 28-30, the Applicant may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.

32. I shall remain seized of this matter to ensure judicial oversight and to monitor the Respondent’s compliance.

33. Dr. Haner shall have the ability to directly initiate a case conference meeting with me and the parties if she determines that she needs further direction, powers, or advice to the parties and the children, or if she determines that the process is being frustrated or impaired by the actions, or inaction, of any party or the children.

34. Dr. Haner shall issue written updates from time to time regarding the parties’ adherence to the terms of this court order.

35. The Respondent is not permitted to request a further order from the court unless she first obtains leave of the court as set out in paragraph 36 below.

36. Leave procedure:

a) the Respondent shall serve and file a form 14B motion setting out briefly the relief to be sought from the court. She is permitted to serve and file one affidavit not exceeding five pages, with exhibits.

b) the form 14B motion shall not specify a return date and shall be considered in chambers by me, unless directed otherwise.

c) the Applicant is permitted to file one affidavit not exceeding five pages with exhibits and must comply with a timeline set out in r.14(11.4).

d) the Respondent is not permitted to serve and file a reply pursuant to r.14(1.6) unless the court directs otherwise.

37. The August 12, 2022 motion date shall be vacated.

38. Counsel for the Applicant shall draft this order. The Respondent’s approval of the draft as to form and content is dispensed with.

39. Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director. Amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

40. A SDO and SDOI shall issue.

Costs

[262] If the parties can not settle costs, they shall submit written cost submissions of no more than two pages, exclusive of any Bills of Costs or Offers to Settle, by August 22, 2022.

[263] Cost submissions should comply with rr. 24(12.1) and (12.2) of the Family Law Rules.

[264] If cost submissions are not received under the timeline set out above, costs shall be deemed settled.

“Justice K. Sah”

Justice Kiran Sah

Date: July 27, 2022