Antunes v Antunes, 2022 ONSC 6450

COURT FILE NO.: 15-8457 M1

2022 11 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Natasha Rene Antunes v. Mark Paul Antunes

BEFORE: Fowler Byrne J.

COUNSEL: Connor Cameron, for the Applicant

Brian Ludmer, for the Respondent

HEARD: September 14, 2022

E N D O R S E M E N T

1There are two motions before me. The Applicant Mother seeks a parenting capacity assessment and related ancillary orders, pursuant to s.30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

2The Respondent Father seeks a finding that the Mother has breached the parenting orders of Justice Doi, dated October 16, 2019 and of Justice Chown, dated January 12, 2022. He also asks the court to request the involvement of the Office of the Children’s Lawyer (“OCL”). Finally, he seeks an order compelling himself, the Mother, and the children of the marriage to participate in reconciliation therapy.

3These motions are brought within the context of a Motion to Change which the Mother commenced in February 2022.

4After considering the evidence filed at this motion’s return on September 14, 2022, I concluded that neither party had provided sufficient evidence on the exact nature and cost of the proposed therapy or assessment, or on the availability of the proposed professionals. I ordered the parties to file supplementary materials and to reappear on this day.

I. Litigation Background

5The Mother and the Father married in 2009 and separated in 2015. There are two children of the marriage: a son, who is currently 10 years old, and a daughter, who is currently 8 years old (“the children”).

6The parties were able to reach a full and final resolution with respect to all issues arising from their separation in 2019. The Minutes of Settlement were signed in or about March 2019, and the final order was taken out on October 16, 2019. This final order of Justice Doi remains binding on the parties (“Final Order”).

7The relevant provisions of the Final Order are as follows:

a) The Mother was to have custody (as it was known then) of the children;

b) During the school year, the children were to reside with the Father every four weekends out of five, from Friday after school until they were returned to school on Tuesday morning;

c) During the summer vacation, the children were to reside with each parent on a week about basis;

d) The Father was to have a minimum of 154 parenting days per year; and

e) Provisions were made for the division of various holidays.

8On January 12, 2022, the Mother brought an urgent motion alleging a mental health crisis for both children. This motion was served on the Father during his Christmas time with the children. In particular, the Mother alleged that the Father was interfering with her efforts to get counselling for the children, especially with respect to the son.

9This motion was argued before Justice Chown. In his endorsement, Justice Chown acknowledged that the parties had resolved many of the issues before him. Justice Chown recognized, in this endorsement, that the Final Order still governed but that the parties had agreed to a slight variation. The parties agreed to do future exchanges at the Bruce Grey Child and Family Services (“BGCFS”), if the agency agrees, and until then, the party who had the children would dress the children for the outdoors, place them outside their house, and then the party would return to their home and close the door, thereby allowing the children to go to the other parent on their own. The parties also agreed to certain provisions that would prevent interference with this much-needed mental health assistance for the children and allow the counselling to move forward.

10The Mother commenced her Motion to Change shortly thereafter, in which she sought to reduce the Father’s parenting time during the school year. In addition, she also sought a parenting capacity assessment. At the case conference in this matter on June 8, 2022, the parties agreed that an expert opinion on parenting time was necessary but were unable to agree on the manner in which that opinion would be provided to the court. At this point, the children had not seen the Father for approximately six months. The Father wanted to appoint the OCL and the Mother sought a private assessment under s.30 of the CLRA. This issue was adjourned to this motion. No mention was made at the case conference of the Father’s desire for reconciliation therapy, or that he sought a finding that the Mother was not complying with earlier parenting orders. The Father added these latter two issues to his motion after changing counsel in summer 2022.

II. Family History

11The conflict between these two individuals has a long, complex history. It has not ended. In this “short” motion, I have read through approximately 60 pages of affidavit evidence, plus an additional 200 pages in exhibits, which include other affidavits. For the most part, it consists of one party blaming the other for the children’s ongoing difficulties, or of each party denying the other’s version of facts. The opposite version of the same facts is at times, striking. There is also a historic charge of assault by the Father against the Mother, to which he pleaded guilty.

12The record suggests that the children have been experiencing some form of emotion distress since the time of the separation. The son has a history of extreme emotional outbursts that, at times, has risked harm to himself or others. He is undergoing considerable stress. In September 2020, his family doctor diagnosed him with abdominal pain secondary to anxiety.

13In summer 2021, BGCFS recommended that both parents participate in an assessment completed by an external assessor to assess the safety, emotional stability and well-being of the parents and children, at the parents’ expense. They also recommended that both children participate in counseling without the parents and that exchanges be supervised.

14The son has an Independent Education Plan (“IEP”) at school and is academically delayed, although no diagnosis is specified. In October 2021, the son’s teacher, his Educational Assistant, the Vice Principal, and the Principal of the son’s school expressed concerns about the son’s behaviour, about his not wanting to go to school, and about his separation anxiety. The Mother gave permission for them to physically prevent the son from running away and hurting himself.

15In or around fall 2021, the Father alleged that the Mother sent highly sexual videos of herself to the Father that he opened accidently, exposing the children to them. The Mother vehemently denies ever having done such a thing. The Mother alleges that the Father has exposed the children to sexual materials that were highly inappropriate to the children and upsetting to them. The Father vehemently denies this. The BGCFS was involved and verified that the children were exposed to questionable sexual content at their father’s home. There was no indication that it originated from the Mother. The BGCFS believed that exposure to such materials is inappropriate, wherever they came from. In their closing letter dated December 19, 2021, the BGCFS stated:

ln reviewing the Society records, there is an extensive pattern of adult conflict that has a concerning cycle of negative custody and access disputes. Parents and family conflict can be very detrimental to the child's development and self-esteem. lt is very hard on a child to see and hear the two people they love hurt each other. Parents should never put down the other parent directly or indirectly by words, or gestures. When a parent puts down the other parent, it is like putting down half the child.

16Despite these challenges, it appeared the parenting schedule under the Doi order was followed. Unfortunately, the schedule fell apart in December 2021. The children were scheduled to be with the Father from December 17, 2021 to December 26, 2021. The exchange from Mother to Father on December 17, 2021, was extremely traumatic for the son. It took two hours to get him in the car to go to his Father’s. The Father threatened to call the police. The son ran around and screamed beforehand and tried to get out the car on several occasions. He succeeded in getting out once, putting himself in danger. The Father had to hold him down to drive away with the car door still open. Despite this, the Father reported that shortly thereafter, the son calmed down and that they had a good visit over Christmas.

17For the next parenting time with the Father, on January 6, 2022, the children refused to go. The Father called the police. The police spoke to the children, and once they were satisfied that the Mother was not overholding the children, they did not force the children to go with the Father.

18As a result of the December incident, the BGCFS became involved. During this investigation, the son reported being exposed to sexual videos by the Father and the daughter reported accidently coming across pornographic videos when looking through the Father’s iPad.

19The BGCFS recognizes that the children have refused to see the Father since Christmas of 2021. In their report to the parents dated May 18, 2022, the workers stated:

Regarding access with their father, the children expressed that they do not feel safe having access with their father at this time. They expressed that he yells and snaps at them a lot and that he calls [G.R.] a "cry baby" when she cries from the yelling.

While the society believes that young children do not make up stories with sexual content unless they have been exposed to it one way or another, in this case, the children could not provide specific details when this happened. This allegation is not verified.

The society has verified that the children are still being exposed to persisting post separation adult conflict and they are placed in the middle of it to align with one parent. Both parents blame the other for this. This is impacting the children’s emotional and mental health as they are being made to navigate adult agendas. Other than that, the BGCFS recommended that the children receive mental health support as they work through their adult issues.

20The Mother states that, despite her efforts, the children have refused to go to their Father’s on his parenting time since that time. She follows the procedure set out in the Order of Justice Chown, but the children refuse to go.

21In February 2022, the Mother suggested using the supervised access centre suggested by BGCFS, as long as the children were not forced to go and the Father were to bear the cost completely. The Father appeared willing and indicated that he had contacted the centre and asked the Mother to do the same. It then appears that the Father changed his mind, proceeding to refuse to use the supervised exchange centre. The worker at the exchange centre also found the Father to be too aggressive in their telephone conversations; the worker blocked his phone number and declined to provide exchange services.

22Following the order of January 12, 2022, the Mother has enrolled the children in a number of counselling services. They meet with the school’s mental health nurse; they receive counselling with Keystone Child, Youth and Family Services; and they attend a therapeutic riding centre. The Mother has also completed several parenting courses with Keystone to better meet the children’s needs. Two of these courses dealt with parenting a child who is anxious or has ADHD.

23Since January 2022, the children have refused to see their Father, the school has reported a marked improvement in the children’s behaviour. The school reports that they are engaged and happy to go to school, that the son is no longer required to attend sessions to deal with his anxiety, and that they are progressing in school.

24I can think of no greater example of how conflict between the parents results in damage to the child. The parents ought to be ashamed that these young children require extensive therapeutic support, and ought to be ashamed that one child puts his own safety at risk in response to his environmental stressors. Despite this, these very motions continue to escalate conflict, and the parents keep pointing their fingers at each other, knowingly dragging the children along behind them. The children have been forced to attend this dramatic, tiresome performance for most of their lives. The price of admission has been too high.

III. Issues

25I must determine the following issues:

a) Should the Mother be prevented from bringing her motion due to non-compliance with court orders?

b) If the Mother is found to be non-compliant, is reconciliation therapy an appropriate order?

c) If the Mother’s motion proceeds, should a private assessor be appointed or should the court request the OCL’s involvement?

IV. Analysis

A. Non-Compliance with Orders

26The Father relies on Rule 1(8) of the Family Law Rules, O. Reg. 114/99, under the Courts of Justice Act, R.S.I. 1990, c. C.43 (“Rules”) to support his request that the Mother’s motion not be heard until which time she is in compliance with the Final Order and the Chown Order. He seeks a finding that the Mother breached these two orders with respect to parenting time and requests an order that she comply.

27It is useless to order someone to do something they are already ordered to do. One order suffices. What is useful, though, is determining whether there has been compliance, and, if not, what the repercussions ought to be.

28There is a multi-stage process for applying Rule 1(8):

a) The court must find a triggering event, or non-compliance, that would allow a consideration of Rule 1(8); and

b) After considering all relevant factors, including the importance of the non-compliance, the context and complexity of the issues in dispute, and efforts to avoid non-compliance, the court is to determine the appropriate remedy.

Mullin v. Sherlock, 2018 ONCA 1063 at paras. 44-47.

29In the case of Herman v. Rathbone, 2017 ONSC 4585, Justice Madsen, relying on Ferguson v. Charlton, 2008 ONCJ 1, identified at para. 24 an intermediary step in which the court was to first consider if it was appropriate to exercise discretion in favour of the non-complying party before considering the appropriate remedy. This discretion should be exercised only in “exceptional circumstances”: Herman at paras. 24-26. I agree that this is an appropriate second step, implied in Mullin, before an appropriate remedy is determined.

Stage One

30The Father has alleged that the Mother failed to comply with the Final Order by having not facilitated his parenting time since the end of December 2021. The Final Order is clear that the children are to be with the Father from Friday after school until the following Tuesday morning every four weekends out of five.

31The Chown Order modifies the Final Order such that the Mother is to get the children ready for each exchange and make her “best efforts” to get the children to cooperate with the exchange. When her parenting time has ended, she is to “make best efforts” to ensure the children go outside for the exchange and then go back inside herself.

32Whether the Mother has complied with these orders is a question to be determined when considering her “best efforts.”

33In the decision of McCarthy v. Murray, 2022 ONSC 855, the court set out the law with respect to a parent’s obligation to ensure that parenting orders are complied with. While decided within a contempt motion, the principles apply here.

A parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order. The parent is not entitled, in law, to leave access up to the child;

A parent does not have to force a child to go for access with the other parent but should require the child to go. A failure to require the child to do this is considered contempt;

Although a child’s wishes should be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can;

At para. 30 of Godard [Godard v. Godard, 2015 ONCA 568], the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?

McCarthy at paras. 30-34, citations omitted.

34I have reviewed the Mother’s evidence and the steps she has taken to ensure that the children spend time with the Father. Putting the children on the porch, and going back inside, is not enough. She has offered no other explanation as to why they are reluctant, other than that they are afraid of their father. A careful review of the facts shows that it was only the son who was the problem on the December 21, 2021, exchange; the daughter appeared willing to go. Other than urging the children to go, the Mother took no other steps. The Mother has the children enrolled in counselling, which is good, but she offered no evidence from the counsellors, or even any opinion, that time with the Father would not be in their best interests. The onus is on the Mother to show why compliance was not possible. She has not shown this.

Stage Two

35Exercising my discretion in favour of the Mother in these circumstances should only occur in exceptional circumstances. The onus is on the non-complying party and the party seeking relief from the court to show why it would be appropriate for the court to exercise its discretion in their favour: Pearce v. Kisoon, 2019 ONSC 4389 at para. 16. In so considering, I should take into account all the relevant history in the course of the litigation, and more specifically, the conduct of the non-complying party: Ferguson v. Charlton, 2008 ONCJ 1 at para. 64; Troiano v. Theriault, 2022 ONSC 331 at para. 13.

36I find that neither party has come to this court fully compliant with prior court orders. The Mother has not made her “best efforts” to ensure the children spent time with the Father. On the other hand, the parties agreed to address this issue by using supervised exchanges. The “porch exchange” was to be an intermediary measure. Despite his agreement, the Father then scuttled the supervised exchanges. On March 2, 2022, there was to be an orientation session, but it was cancelled because the Father did not complete the intake interview and sign the necessary agreements. The exchange service was supposed to start the next day. On May 10, 2022, the exchange centre closed their file due to the Father’s view that the service would not be helpful to them. Despite the service’s attempts to answer the Father’s questions, the service found him to be “passive aggressive and rude” in his communications with them. They refused to provide services after that and blocked his contact number. The Father admits in his affidavit that he did not think the service was suitable given its hours of operations.

37The Father took this position even though the porch exchanges were obviously not working and he had not seen his children for several visits at that time. He was ordered to use supervised exchanges in January 2022, with the only caveat being that the centre had to agree. It appeared they had agreed until the Father’s actions, commencing as early as March 2, 2022, scuttled it. The Father needs to bear some responsibility for his lack of parenting time from this time forward.

38In addition, the Father states that he does not trust the Mother as the “sole gatekeeper” of the children’s developmental, academic and extra-curricular activities. The Father’s position fails to recognize that the Mother has sole decision making authority (formerly known as custody) pursuant to the Final Order. The court has determined at that time that this was in the children’s best interests. The Father has taken no steps to vary that order.

39In viewing the unacceptable conduct of both parties, I am also mindful of my duty to apply the Rules to promote the primary objective, namely, to deal with cases justly. This includes ensuring that the procedure is fair to all parties: r.2(2) to 2(4).

40Finally, I am also mindful that whatever ruling I make will affect two children who seem to bear the brunt of their parents’ conduct.

41Here, I find the Father’s conduct to constitute the “exceptional circumstance” that justifies my hearing the Mother’s motion despite her non-compliance. Her motion is about the children, whose interests I am to hold paramount. This family remains in crisis. Steps must be taken to affect a resolution.

42The history of this litigation, though, does not constitute a circumstance sufficiently exceptional so as to excuse the Mother from needing to comply with court orders. Another party’s disobedience does not discharge a party from the obedience expected of themselves. This is but another example of these parties being more concerned with each other’s conduct than with the deleterious impact of such conduct on the children.

Stage Three

43My powers are broad under rule 1(8), which touches on what happens when a person fails to obey an order. I am not confined to purely procedural remedies. Rule 1(8) should have broad and purposeful application. The order itself creates the substantive right of the parties, while r.1(8) provides the means of enforcement to realize those substantive rights. Rule 1(8), therefore, provides broad discretion to the courts to make orders it considers necessary to fully address a party’s failure to comply, which is especially important when the orders touch on the well-being of children. If the remedy ordered addresses 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): Bouchard v. Sgovio, 2021 ONCA 709 at paras. 50-51.

44The most effective remedy should be designed so that parenting time can resume. The Mother’s efforts are insufficient. I have reviewed the notes of the current therapists and the children’s report cards. I acknowledge that the children are doing better. The therapists’ notes and report cards do not say that keeping the children from the Father would best serve them.

45The Mother should do whatever she can to get the children, both or even just one, to spend time with the Father. The parties can start small – a lunch at a fast-food restaurant, perhaps, or a few hours at a skating rink. There will be many public holiday events coming up that the Father can enjoy with the children with minimal pressure. I remind the parties: the focus is not on what they want, or whether their position prevails, but what would be best for the children and what the children would enjoy. This is irrespective of who is at fault.

46As will be seen below, I will be ordering that the family undergo a section 30 assessment. I agree with the Father’s concerns though, that such an assessment may not be helpful to the trial judge if the children were not observed with the Father. In order to be effective, it is imperative that the children start spending time with the Father.

47Accordingly, commencing immediately, the Mother will be required to ensure that the children participate in a minimum of one activity with the Father every week. It must be at least two hours, with the duration to increase by two hours each week. If possible and all is progressing well, it can be expanded up to the current parenting schedule. This activity can be indoors, outdoors, with the Father alone or with his extended family. It can be in public or in a private home. It does not matter when or where, just that it starts. Best efforts on the part of the Mother are not sufficient.

48To be clear, this does not vary the Chown Order or the Final Order. Those orders remain in place and the Mother must comply with them. My order today is an additional order, allowing the Mother to show she is making the appropriate effort to fulfil her obligation. To ensure that the Mother takes this obligation seriously, I will have the parties reattend before me in one month. If, on the reattendance, I find that the Mother is not making sufficient efforts to have the children spend time with the Father, I will invite submissions on what penalties should be imposed upon the Mother, which could include a financial penalty for every missed visit.

49The Mother should also be warned that her inability to facilitate and promote a relationship between the Father and the children may not bode well for her in the assessor’s report.

B. Appropriateness of Reconciliation Therapy

50I do not find reconciliation therapy appropriate as a remedy for the Mother’s non-compliance.

51I accept that I have the authority to make this order, and that no finding of alienation needs to be made before I consider it. This is a severe remedy, though, where once again these children are bearing the burden of their parents’ behaviour.

52When deciding whether to order reconciliation therapy, I am guided by the following summary of principles:

1. The court may order reunification (or reconciliation) therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children's Law Reform Act.

2. Such orders are to be made sparingly.

3. There must be compelling evidence that the therapy will be beneficial.

4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.

5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

Testani v. Haughton, 2016 ONSC 5827 at para. 18; E.H. v O.K., 2018 ONCJ 412 at para. 78.

53When considering these factors, I find no compelling evidence to have been provided showing that this therapy will be beneficial. While I have a general proposal of how the therapy will proceed, these therapists are obviously constricted in describing their expected therapy plan, having not previously interacted with these children. In addition, these factors indicate that reunification therapy may take place after an assessment, and that the reunification therapist ought to be given practical, appropriate direction.

54I am concerned about the children’s mental health, especially that of the son. This is simply not a case of children no longer wanting to visit their father: it is something more serious, where the son has, on one occasion, put himself in harm’s way to avoid it. I have no evidence of how reconciliation therapy may impact the son. At all times, I must put the children’s physical, emotional and psychological safety, security and well-being at the forefront throughout this process.

55Accordingly, while I am concerned about the lack of contact between the children and the Father, I have insufficient evidence that imposing reconciliation therapy on these children is in their best interests. A professional, with the appropriate education and experience, should recommend this therapy. If such an opinion is provided, then either Ms. DeVeto or Ms. Barclay would appear to have the appropriate training to proceed.

56I understand that this will be extremely frustrating to the Father. However, it is preferrable that the resumption of equal parenting time be delayed for a short time, and reintroduced in a child focused manner, rather than irreparable harm be inflicted on these children by forcing them into a therapy that is not indicated for them. By saying this, though, I want to clarify that I am in no way ordering or suggesting that parenting time with the Father should cease until the assessment is completed. The order for parenting time remains in place. The Mother has not done enough to encourage it. The interim parenting schedule I have imposed should initiate a renewal of contact with the Father.

C. OCL or Private Assessment

57The one thing the parties agree on is that an independent opinion is required on what is best for the children. This was supposed to be the only issue this motion litigated.

58The OCL has been involved with this family before: there is an assessment dated September 30, 2015; an assessment dated March 8, 2017; and an addendum to the most recent report, dated April 28, 2017. The OCL was, again, requested to become involved in early 2019, but it declined involvement. I do not know whether the OCL would become involved again. It should be noted that in these previous involvements, the OCL recommended custody, as it was known then, to the Mother but otherwise equal parenting time.

59The Mother, instead, seeks the appointment of an expert to complete a parenting capacity assessment, pursuant to s.30 of the CLRA.

60The Mother bears the burden of showing that an assessment ought to be ordered: Verma v. Di Salvo, 2020 ONSC 850 at para. 61.

61In determining whether an assessment is appropriate, the following non-exhaustive list of criteria should be considered:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

Glick v. Cale, 2013 ONSC 893 at para. 48, cited with approval in A.C.V.P. v. A.M.P., 2022 ONCA 283 at para. 30.

62Upon reviewing these criteria, I have no difficulty finding an assessment to be necessary. The parties appeared dysfunctional even before separation. They appear to disagree in the past on whether French immersion was appropriate for the son. They disagree about the religious observances of the children (the Father is a Catholic; the Mother, a Jehovah’s Witness). They required court intervention to reach their initial settlement. The relationship between the parents is unhealthy and they have trouble prioritizing the children’s best interests. Their affidavits clearly show a mutual disregard for the other’s ability to parent, and they blame each other for the children’s difficulties. The son has been diagnosed with anxiety and has manifested that behaviour.

63The OCL has been involved in the past. They declined to become involved in 2019, so it is unknown whether they would reinvolve themselves a fourth time. I suspect it is unlikely. The Father also claims that an assessment is too expensive. This is a difficult argument to accept as he also advocates for reconciliation therapy, which may be just as costly, if not more so. I don’t believe it is in the children’s best interests to wait to see whether the OCL will respond and then have to start the process of finding an assessor. I am also persuaded by the fact that a private assessment is what BGCFS recommended.

64The Mother has proposed Dr. Louise Sas. Dr. Sas appears available immediately and can have a report by February 2023. She has provided a summary of her process. This process should start as soon as possible.

Conclusion

65For the foregoing reasons, I make the following orders:

a) Dr. Louise Sas shall immediately commence work on a s.30 parenting assessment with respect to the children; Dr. Sas is also requested to address the appropriateness of reconciliation therapy;

b) The parties shall execute any documents required to facilitate the completion of this assessment, including but not limited to those needed to acquire third party records the assessor deemed necessary;

c) Each party shall participate fully in the parenting assessment, attend any interviews or meeting, and answer any questions the assessor poses.

d) The parties shall bear the costs of this assessment equally, including any retainer required;

e) Commencing immediately, the Mother shall advise the Father of a weekly activity that the children will participate in with him; the activity does not have to be the same each week; the first activity shall take place no later than November 27, 2022; the parenting time with the Father shall be no less than two hours during this first week and shall increase by at least two hours each subsequent week (“Reintegration Schedule”);

f) This motion is returnable before me at 9:00 a.m. on December 20, 2022 by zoom, to review the fulfillment of the Reintegration Schedule;

g) At least four days prior to December 20, 2022, the parties must serve and file affidavit evidence providing an update on how the Reintegration Schedule is progressing; if the Reintegration Schedule is not proceeding as ordered, the parties may propose any amendment to the Reintegration Schedule or request that a penalty be imposed for the other party’s failure to comply, which may include a financial penalty; These materials shall be no longer than three pages, double spaced and single sided;

h) At no time should the children be exposed to pornographic material while with either parent;

i) The children shall not have access to the Father’s iPad. If the Father wants the children to have access to an iPad, he has to buy another iPad with no access to the parent’s email exchanges and which is free of adult content.

j) On or before December 16, 2022, the Mother is to serve and file written submissions on costs, limited to 3 pages, single-sided, double-spaced, plus a Costs Outline; the Father shall serve and file his responding submissions, plus a Costs Outline, on or before January 6, 2023, with the same size restrictions; the Mother may file Reply submissions, limited to 2 pages, double-spaced and single-sided, on or before January 13, 2023;

k) If not already scheduled, the parties are to forthwith cooperate and schedule a settlement conference date no earlier than March 31, 2023, allowing time for the assessment to be completed; and

l) The remainder of both motions are dismissed, without prejudice to each party’s ability to seek reconciliation therapy after the parenting assessment has been completed, if it so recommends; the decision of whether to order reconciliation therapy will be decided by the judge who hears this motion, if it proceeds. I am not seized of this issue.

Fowler Byrne J.