COURT FILE NO.: FC-21-00000616-0000 DATE: 2023-03-16

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

B E T W E E N:

A.B. Applicant H. Hassan, for the applicant

- and -

S.M. Respondent S. Weir, for the respondent S. Sabourin, appearing

HEARD: February 24, 2023

THE HONOURABLE JUSTICE M. BORDIN

REASONS FOR DECISION

Overview

[1] The applicant father, A.B. (the “applicant”), and the respondent mother, S.M. (the “respondent”), began cohabiting in 2012 and separated in June 2019. They have two children born of their relationship: T. M-B., born February 2013 (age 10) and W. M-B., born November 2016 (age 6).

[2] The applicant lives in Sudbury, Ontario. The respondent moved from Sudbury to Beamsville, Ontario on June 28, 2019. The children live with the respondent mother. The applicant has had no in-person contact with T. M-B. since January 6, 2020. His last contact with T. M-B. was Easter weekend 2020. He currently has one weekend a month supervised parenting time with W. M-B.

[3] On December 2, 2021, the applicant commenced an application seeking parenting time and decision-making responsibility with respect to the children.

[4] The applicant’s notice of motion dated December 15, 2021, sought:

1. Joint decision-making responsibility;
2. Reasonable parenting time with the children;
3. Reconciliation counselling with T. M-B.; and
4. Involvement of the Office of the Children’s Lawyer (“OCL”).

[5] A case conference was held before MacPherson J. on March 23, 2022. MacPherson J. made orders for disclosure and an order requesting the involvement of the OCL.

[6] The applicant’s December 14, 2021 motion was heard by Donohue J. on March 25, 2022. Donohue J. ordered that:

1. The request for reconciliation counselling with T. M-B. is denied pending the involvement of the OCL and production of records;
2. The applicant was to have a full weekend parenting time with W. M-B. once a month at the paternal grandparents’ home;
3. The applicant’s parenting time was to be supervised by one other adult present in the home;
4. The applicant was to be accompanied by another adult on the exchanges who would participate in the exchange;
5. The motion could be returned on seven days’ notice; and
6. The respondent was to pay the applicant costs in the amount of $2,500 payable within 30 days.

[7] The applicant’s notice of return of motion dated December 1, 2022 seeks:

1. Leave to proceed with the motion as provided for in the order of Justice Donohue of March 25, 2022, prior to the delivery of the OCL report;
2. Security for costs in the amount of $7,500 for failing to pay the costs ordered by Justice Donohue;
3. Leave to pursue the parenting time relief sought in the above referenced notice of motion;
4. Expanded parenting time with both children; and
5. Telephone or video parenting time.

[8] The return of the applicant’s motion as a short motion came before me on January 12, 2023. The parties were then awaiting the written report of the OCL which was expected shortly. The motion was adjourned to February 24, 2023 for a long motion, and a timetable was set.

[9] A settlement conference was held before MacPherson J. on January 26, 2023. MacPherson J.’s endorsement reads:

The counsel for the parties shall canvass the OCL clinician Cindy Katz as to potential reconciliation counsellors, one to be jointly retained as soon as possible and paid for 60/40 unless there are benefits available to cover same. [emphasis added]

[10] MacPherson J. adjourned the application to an assignment court on September 21, 2023, to schedule a settlement conference and trial scheduling conference before Her Honour.

[11] The applicant submitted a draft order setting out the relief sought on the motion. It included temporary orders that:

1. The applicant shall have interim parenting time with the children as outlined in a proposed detailed schedule for unsupervised parenting time. The proposed schedule addresses March Break and holidays.
2. The applicant is to have telephone or video parenting time with the children at 6:00 p.m. on Wednesdays and Sundays when they are not with the applicant and the respondent is to have telephone or video parenting time with the children at 6:00 p.m. on Saturdays when they are not with the respondent.
3. The applicant shall be provided with contact information and details for the children’s health, education, activities, sports or other important events, and the respondent shall sign any required authorizations for the father to receive such information.
4. The parties are to exchange particulars of employment, pay stubs, and tax information.
5. Costs payable by the respondent.

[12] The draft order does not seek reconciliation counselling with T. M-B. or security for costs.

Preliminary Matters

[13] The parties made accusations against each other of failure to comply with timelines and orders, late filing of materials, and failure to comply with the Family Law Rules, O. Reg. 114/99 (the “Rules”). The violations go both ways, and I will deal the substantive issues on the motion notwithstanding.

[14] The applicant seeks to admit the affidavit of Emma Howe who has provided the applicant with personal counselling since August 2019. The respondent objects to Ms. Howe’s evidence on the basis that it is expert evidence and does not comply with rule 20.2. Ms. Howe is a participant expert. A participant expert is a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of her skills, knowledge, training or experience while observing or participating in the events at issue. Given the allegations of family violence, the evidence of the applicant’s efforts in counselling is relevant on this motion. To the extent that the affidavit of Ms. Howe seeks to provide opinion evidence as to whether parenting time should be varied or be supervised and whether reconciliation therapy is required, it is not admissible and I am not considering it.

The Evidence Filed

[15] The applicant filed eight affidavits in support of his motion:

1. Affidavit of applicant dated December 15, 2021 (11 pages, 3 exhibits);
2. Affidavit of applicant dated March 14, 2022 (7 pages, 3 exhibits);
3. Affidavit of Brenda Boulet dated March 18, 2022 (3 pages);
4. Affidavit of applicant dated December 1, 2022 (13 pages, 1 exhibit);
5. Affidavit of Brenda Boulet dated November 30, 2022 (3 pages);
6. Affidavit of Amanda Boulet dated November 30, 2022 (3 pages);
7. Affidavit of applicant dated February 14, 2023 (5 pages); and
8. Affidavit of Erma Howe, MSW RSW, dated February 14, 2023 (3 pages, 1 exhibit).

[16] The applicant has also uploaded to CaseLines the 18-page affidavit of the respondent dated January 7, 2022.

[17] The respondent did not file a motion confirmation form. The respondent only uploaded one affidavit to CaseLines for the motion, her affidavit dated December 5, 2022 (8 pages, 5 exhibits).

[18] I have reviewed and considered all the affidavits.

[19] Both parties rely on the January 13, 2023 section 112 report of the OCL.

The Affidavit Evidence

[20] The applicant deposes that, prior to separation, he was very involved in all aspects of the children's lives. He prepared meals and assisted the children in getting ready in the mornings for daycare and later for school. He was very involved in their toilet training and their bedtime routines. He also ensured the children were physically active and regularly took them on nature walks, participated in age-appropriate soccer programs and swimming lessons, and went on camping trips. This was not denied by the respondent.

[21] The applicant acknowledges that the children were exposed to conflict and domestic violence between their parents. The applicant says the respondent was also violent toward him and provides examples. The respondent also provides some details of the violence and conflict. She suggests she could not have been violent because the applicant is so much bigger than her. The parties each allege that the other was at times the instigator of conflict and violence and that each has acted aggressively and inappropriately. Each provides examples of such conduct.

[22] The applicant has completed an anger management course, retained a personal counsellor in 2019 and continues to attend counselling, and completed online parenting courses and the Triple P course which focuses on understanding and meeting the needs of children.

[23] The applicant agreed to the respondent moving to Beamsville, Ontario in June 2019. Initially, the applicant would attend Beamsville for parenting time and would stay at the respondent’s home or take the children to be with his family in the area. The respondent acknowledges these visits took place and occurred typically once a month. From June 2019 to February 2020, the applicant had regular telephone and video conference calls with the children.

[24] In December 2019 through early January 2020, the applicant says he stayed at the respondent’s home for almost a month for parenting time. During that time, he would also take the children to his parent’s home. The respondent agrees the applicant stayed at her home but says it was for a two-week period over the Christmas Holidays in 2019-2020.

[25] In early 2020, T. M-B. disclosed to a counsellor that he had witnessed parental conflict and violence prior to the parties’ separation. As a result, the applicant has not been allowed to see T. M-B. since January 6, 2020.

[26] By March 2020, the respondent had restricted the applicant’s contact with the children to be by telephone only.

[27] In March 2020, the parties entered into a separation agreement, the parenting time of which includes that:

a. The parties have joint custody of the children; b. The children will reside primarily with the respondent; c. The applicant will have access to the children at the sole discretion of the respondent, including whether access would be supervised, at least two weekends a month.

[28] Following the separation agreement and prior to the order of Donohue J., the applicant says he had only one short, in-person visit with W. M-B. in August 2020 supervised by the applicant and a brief video visit with W. M-B. on December 25, 2020. The respondent says that the applicant saw the children a number of times throughout the summer of 2020 but provides no details. The applicant says she allowed the applicant to have FaceTime chats with the children. She indicates the COVID lockdowns impacted the applicant’s parenting time. She asserts the applicant was aggressive, impacting her ability to assess visits with the children moving forward. As proof, she says the applicant threatened to take her to court and told her she was a bad mother.

[29] The respondent says that T. M-B. did not want to have FaceTime visits with the respondent and that the visits were having a negative impact on T. M-B.

[30] On June 29, 2021, the parties entered into a temporary and without prejudice amending agreement (the “amending agreement”) varying the separation agreement to provide that the respondent would have a three-hour supervised visit on the first three Saturdays of every month and giving primary decision-making responsibility to the respondent. The applicant says that he was to have nine supervised parenting times with W. M-B. and that parenting time was to be re-assessed after the visits. The applicant says the respondent withheld some of the parenting time he was entitled to. The respondent gives explanations for why these visits could not happen. No make-up visits appear to have been scheduled by the respondent.

[31] In the amending agreement, the parties agreed to proceed with reconciliation counselling with an agreed upon counsellor. This did not occur. The respondent says this is because the Child Advocacy and Assessment Program (“CAAP”) team indicated that T. M-B. was not ready to engage in reconciliation therapy.

[32] In her affidavit of November 30, 2022, the applicant’s mother provides a positive description of the applicant’s parenting time with W. M-B. which has taken place at her home since the order of Donohue J. She deposes that the applicant is child-focused, tries to plan age-appropriate activities, ensures that W. M-B.’s needs are met and has appropriate conversations with her. She has observed W. M-B. to be happy and comfortable with the applicant and that W. M-B. says she wishes she could stay longer. The applicant’s conversations with W. M-B. are supportive of W. M-B.’s relationship with her mother.

[33] In Amanda Boulet’s November 30, 2022 affidavit, she explains that she lives in the family home where the applicant has his parenting time with W. M-B. She has been present for most of the pick-ups and drop-offs and is present for much of the parenting time. She deposes that W. M-B. is happy to see her father, is affectionate toward him, and often expresses that she wishes she could see them more often. W. M-B. is comfortable at the applicant’s family’s home. Amanda Boulet deposes that the applicant does not need to be supervised during his parenting time – he is responsible, caring, patient, attentive, sets routines, and prioritizes outdoor and healthy activities and meals.

[34] As noted, Ms. Howe has provided the applicant with personal counselling since August 2019. Counselling has included stress and anxiety management, cognitive behaviour techniques, internal family systems and inner child work, parenting skills and solution-oriented discussions. Ms. Howe deposes that the applicant is self-reflective and insightful, has expressed remorse for episodes that occurred during his relationship with the respondent, has expressed his responsibility for his part in conflicts with the applicant, and seeks to make amends with T. M-B. Ms. Howe has no concerns about the applicant’s ability to be a responsible parent to the children.

[35] With respect to W. M-B., the respondent says that W. M-B.’s relationship with her father and members of his family is important. She believes W. M-B. enjoys time with her father and has not disclosed any incidents of violence or feeling unsafe. The respondent says she has no doubt that what Amanda Boulet said in her affidavit is true – that the applicant takes good care of W. M-B. and their interactions are positive. The respondent does not respond to the evidence of Brenda Boulet.

[36] The applicant indicates she is willing to accommodate additional video or telephone visits between the applicant and W. M-B. with advanced notice or a schedule. However, she asserts that it is best for parenting time with W. M-B. to take place in the community but notes that it could take place at her mother’s house.

[37] In his most recent affidavit, the applicant says that he does not believe he and T. M-B. require reconciliation counselling but would go and support it in order to see T. M-B.

OCL Report

[38] The parties both say that the court should read and consider the OCL’s report. The report was prepared pursuant to s. 112 of the Courts of Justice Act:

Investigation

112 (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning decision-making responsibility, parenting time or contact with respect to a child is before the court, the Children’s Lawyer may,

(a) cause an investigation to be made on all matters concerning decision-making responsibility, parenting time or contact with respect to the child;

(b) cause an investigation to be made on matters specified by the court related to decision-making responsibility, parenting time or contact with respect to the child; or

(c) meet with the child to determine the child’s views and preferences with respect to matters that may include decision-making responsibility, parenting time or contact. 2021, c. 4, Sched. 3, s. 14.

Report

(2) The Children’s Lawyer may report and make recommendations to the court on the results of an investigation or meeting conducted under subsection (1). 2021, c. 4, Sched. 3, s. 14.

Authority to act

(3) The Children’s Lawyer may act under subsection (1) or (2) on his or her own initiative, at the request of a court or at the request of any person. 2021, c. 4, Sched. 3, s. 14.

Affidavit

(4) The person who prepares a report under subsection (2) shall execute an affidavit verifying the facts in the report that are within the person’s knowledge and setting out the source of the person’s information and belief respecting facts that are not within their knowledge. 2021, c. 4, Sched. 3, s. 14.

Service

(5) The person who prepares a report under subsection (2) shall serve the affidavit, along with a copy of the report attached as an exhibit, on the parties and file the affidavit and report with the court. 2021, c. 4, Sched. 3, s. 14.

Evidence

(6) The filed affidavit and report shall form part of the evidence at the hearing of the proceeding. 2021, c. 4, Sched. 3, s. 14.

Attendance on report

(7) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who conducted the investigation or meeting under subsection (1) to attend as a witness. 2021, c. 4, Sched. 3, s. 14.

[39] The parties did not dispute the facts set out in the report.

[40] The OCL report provides useful information concerning the applicant, respondent, and the children that assists the court.

[41] However, the OCL report goes beyond determining the children’s views and preferences. It sets out an opinion on reconciliation counselling, parenting time in the short and long term, and decision-making. As such, this aspect of the report is opinion evidence on the very issue to be determined by the court.

[42] In Ojeikere v. Ojeikere, 2018 ONCA 372, the OCL filed fresh evidence consisting in part of an affidavit of an in-house clinician at the OCL. The OCL clinician had interviewed the children several times in the absence of the parents. Her affidavit set out a detailed summary of the interviews. The Court of Appeal held this was independent evidence of the children’s wishes, their feelings about their parents, and their views on the issue of returning to Nigeria. The Court found her evidence was credible and was necessary to properly assess an issue before the Court. The Court admitted the fresh evidence but discounted the OCL clinician’s opinion evidence, as she was not qualified as an expert: see paragraphs 41, 43, 49 and 50. The Court of Appeal referenced paragraph 22 of Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, where the court held that:

The role of a clinical investigator conducting a clinical assist to counsel for the child is not to express her opinion. She is not qualified as an expert and she did not conduct an investigation or an assessment. E.’s statements and her views and preferences, to the extent that they can be ascertained from Ms. Noble’s affidavits are admissible. However, the portions of her affidavit that express her opinion are not admissible. A similar limitation of the admissibility of the evidence of a social worker retained to provide a clinical assist to counsel for the child was expressed in the case Children’s Aid Society of Haldimand Norfolk and T.K.L.

[43] In Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at paragraph 73, the Court of Appeal further elaborated on Children’s Aid Society of Toronto v. C.J.W.:

This court cited approvingly Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, at paras. 21-22. In that case, the court emphasized that an individual retained to advise the court of the child’s views and preferences, but not qualified as an expert, may only advise the court of both what the child said and the individual’s direct observations of the child. This individual may not offer an interpretation of what the child’s statements mean.

[44] The children’s views and preferences and the details of the OCL’s interviews with them are necessary to assist this court in determining the issues before it. I find the evidence to be credible. In accord with the above principles, I rely on that evidence but discount the opinion evidence of the OCL in the report as the clinician was not qualified by either party as an expert and the parties do not agree on the recommendations made by the clinician – specifically the need for reconciliation before parenting time can be varied.

[45] It is clear from the OCL report that W. M-B. loves her father and enjoys her time with him and that he behaves appropriately toward her and any concerns she expresses about missing her mother. W. M-B. finds the long drives for her father’s parenting time challenging and would want to see him more if he lived closer. It is concerning that W. M-B. has knowledge of historical family violence that given her age she could not possibly remember. It suggests that the information is being conveyed to her by her mother. She specifically says that she knows about T. M-B. and the applicant because “Mom told me what happened.”

[46] T. M-B. clearly views seeing his father with trepidation. He refers to him as a liar and believes his father wants to see him for nefarious reasons. He describes two specific incidents of violence perpetrated against him by his father from his childhood.

[47] T. M-B.’s interviews with the OCL strongly suggest that his mother is intentionally or inadvertently sharing with him adult matters and matters of conflict between the parties. He references details of W. M-B.’s visits with the applicant, her swimming in the pond “with parasites and snapping turtles” and the dispute between the parties over this. He says he overheard a conversation between his mother and her therapist about this. He says W. M-B. “brings back nonsense” from her visits with the applicant. He expressed concerns about W. M-B. having to go all the way to Sudbury for a week and that the applicant does not care about her missing school because “he only cares about himself.” He talked about his father making “ten times more money than my mom and he won’t help pay for anything, even a pair of underwear.” He says he overheard his mother say this to his therapist.

[48] He had knowledge about W. M-B. allegedly wanting her future visits to take place at his maternal grandmother’s home and that they all wanted this because she would be a good supervisor. He suggested his father needs therapy “to control his temper.” He knew that this father had not lost his temper with W. M-B. He again referenced the applicant not listening to his mother’s concerns and that his father does as he pleases with W. M-B. He talked about his father having a “fixed mindset”.

[49] Since T. M-B. does not see his father, his mother is the most likely source for all this information.

[50] At the second meeting, T. M-B. wished to correct a statement he made in the first meeting. He referred to his suggestion that his mother wants the applicant to “leave us alone.” He clarified that his mother “has never said anything bad about [the applicant] and does not want him or W. M-B., or the judge, to think badly about her.” This strongly suggests that the respondent discussed T. M-B.’s interview with the OCL with him and may well have suggested making such a statement to the OCL at the outset of the second interview.

[51] When asked how he would know if his father has been successful in therapy, he said that he would believe his mother if she told him and that he would go to therapy with his father if his mother told him to. He said he would be interested in “totally watching every step and every word” of the applicant’s time with W. M-B. and “if he was good, then maybe I would consider that he was telling the truth and maybe I would consider going.”

[52] The OCL notes that the applicant attends personal therapy and has gained insight into the roots of his behaviour. He has attended numerous groups aimed at enhancing his parenting practices, including Caring Dads. He has described an understanding of T. M-B.’s fear and is empathetic to T. M-B.’s feelings. He has maintained a stable relationship with his current partner with no reports of unresolved conflict. He has shown patience with the delay of reconciliation counselling. He was insightful, humble and remorseful.

Law and Analysis

Reconciliation counselling

[53] In his notice of motion filed, the applicant seeks an order that the parties and T. M-B. attend for reconciliation counselling. The notice of return of motion seeks leave to proceed with the original notice of motion.

[54] In submissions, applicant’s counsel urged me to reject the OCL’s recommendation for reconciliation and cautioned that reconciliation could take an indefinite amount of time and that the parties should be ordered to get on with parenting and that parenting time should be ordered. As noted, the draft order filed by the applicant contains no order for reconciliation therapy.

[55] This court has the jurisdiction to order reconciliation counselling in appropriate circumstances and if they are in the best interests of the children. Section 28(1) (a), (b) and (c) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) provides in relevant part:

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances …

[56] In A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, the Ontario Court of Appeal reviewed a trial judge’s determination that 1) the mother had poisoned the 14-year-old child’s relationship with the father, 2) the child’s long-term best interests favoured a reversal of custody and a temporary suspension of access to the mother and 3) participation by the child in reconciliation therapy.

[57] In C.B. v. E.G., 2023 ONSC 1571, the court noted that the Court of Appeal clarified conflicting lower court decisions on this topic with the following conclusions and guiding principles:

1. The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case: para. 47.
2. Judges have broad authority under sections 16 (a) and 16(2) of the Divorce Act and sections 28(1) (a), (b), and (c) of the Children’s Law Reform Act to make orders for counselling or therapy: paras. 49-51.
3. Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests: para. 65.
4. There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case: paras. 72-74.

[58] The respondent referenced Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226. At paragraph 17, Jarvis J. noted that caution must be exercised when considering the circumstances in which a therapeutic counselling order should be made. In paragraph 18, the court summarized the factors to be considered:

1. Such orders are to be made sparingly;
2. There must be compelling evidence that the therapy will be beneficial;
3. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected;
4. Resistance to therapy is an important factor but is not the determining factor whether such an order should be made;
5. Where a clinical investigation or assessment is underway, no order should be made pending their conclusion; and
6. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

[59] In Leelaratna v. Leelaratna, 2018 ONSC 5983, at paragraph 68, Audet J. noted that “even if the court has jurisdiction to make a therapeutic order, and even if the HCCA does not apply such that the parties’ and the older child’s consent may be dispensed with, it remains within the discretion of the judge to determine whether to make that order or not.”

[60] Audet J., considering the factors in Testani, found that the following factors are of particular relevance to the exercise of the court’s discretion in making a therapeutic order:

a. Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed? b. Is there compelling evidence that the counselling or therapy would be beneficial to the child? c. At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)? d. Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial recommendation compel participation and cooperation by the recalcitrant parent? e. Is the child likely to voluntarily engage in counselling therapy?

[61] The best interests of the child is the governing test. As summarized at paragraph 17 of C.B. v. E.G.:

Application of the best interests test is a flexible and fact driven exercise, tailored to the needs and circumstances of the child – “case by case consideration of the unique circumstance of each child is the hallmark of the process”: Van de Perre v. Edwards, 2001 SCC 60 at para 13. The analysis must remain centered on the rights of the child, from a child-centred perspective – the ‘rights’ of a parent are not a criterion: Young v. Young at para. 42. Since parenting decisions are “pre-eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child”: Young, at para. 74.

[62] Section 24 of the CLRA provides in relevant part:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[63] As noted by Chappel J. in McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1:

[93] The wide array of factors relevant to the best interests analysis under the Divorce Act allows for a uniquely tailored analysis of the parenting issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration. The factors that the court should focus on in carrying out the best interests assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case. The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). All parties bear the onus of demonstrating where the best interests of the child lie (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.)).

[64] The above comments are equally applicable to the CLRA.

Status Quo

[65] I am aware that changes to the status quo are not readily and easily made, nor should they be. Compelling evidence is required to do so. In Southorn v. Ree, 2019 ONSC 1298, the court said:

[20] Therefore, nothing in all of this changes the essential rule regarding change in custody from an established status quo on an interim motion: the evidence, either garnered from the facts or garnered from the assessment or investigative report, must be compelling and immediate for there to be a change a long term status quo. If the assessment report does not contain evidence of the compelling facts necessary to change the status quo, that should put an end to the motion in the same manner as a party’s failure to provide that evidence. …

[66] And in Western v. Reed, 2022 ONSC 900, the court said:

[22] Generally, on a temporary basis the court should not adjust an established parenting time arrangement, even if there are minor difficulties with it, unless there is a compelling reason to do so. That is, it is not in the child’s best interest for an established parenting time arrangement to be changed on a temporary basis, only to be changed again at trial after a court has thoroughly reviewed all of the evidence.

[67] However, the principle that it is preferable not to disrupt a status quo parenting arrangement on an interim motion is not absolute. As put by the court in Batsinda v. Batsinda, 2013 ONSC 7869, at page 18, citing Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.): “the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.”

[68] Courts have, where appropriate to do so and where supported by the evidence and a concern for the best interest of a child, made temporary orders which change the status quo or a prior order: see for example Scutt v. St. Cyr, 2020 ONSC 1159, and Barrow v. Zielonka, 2019 ONCJ 360.

Parenting Time and Reconciliation Therapy

[69] It is in the children’s best interests to have meaningful relationships with both parents.

[70] T. M-B. and W. M-B. are still relatively young. For T. M-B., each passing year brings with it the possibility of irreversible entrenchment of attitudes and perspectives which may become more difficult to change and which may result in long term psychological harm.

[71] The applicant has demonstrated an ability and willingness to parent and care for W. M-B. and expresses a desire to do so for T. M-B. He has demonstrated an appropriate willingness to support the respondent’s relationship with the children. He indicates he is willing to move closer to the children and is seeking employment to do so.

[72] I am concerned with the respondent’s ability and willingness to support the development and maintenance of the child’s relationship with their father. For example, the applicant says that in August 2022, just before his scheduled weekend visit with W. M-B., he had a motor vehicle accident on the 400 highway which made it impossible for him to attend the visit. He asked to reschedule the visit, but the respondent refused. This is not denied by the respondent.

[73] I have considered the factors relating to the historical family violence and their impact on the children’s best interests. While there has been historic family violence involving T. M-B., and there are allegations of historical family violence against the applicant, they no longer impact the ability and willingness of the applicant to care for and meet the needs of the children.

[74] While it is important to consider the child’s views and preferences, they are not the sole or determinative factor.

T. M-B.

[75] T. M-B. has suffered trauma and appears to continue to struggle with this trauma. This is not to be minimized. However, it is possible that his trauma continues to be sustained by other factors, such as the information he is gleaning from his mother, directly or indirectly.

[76] T. M-B.’s trauma appears to be having an impact on W. M-B. and may negatively affect her relationship with the applicant. This must also be addressed.

[77] Positively reconnecting with his father in an appropriate environment is in T. M-B.’s best interests. On the evidence, there is reason to believe that the applicant and T. M-B. can reconnect in a therapeutic setting which would be beneficial to T. M-B.

[78] Unfortunately, the parties have not put forward details of the reconciliation therapy for the court to consider. However, that should not, on its own, be an impediment to an order for such therapy. I note that the OCL is supportive of reconciliation therapy.

[79] In his interviews, T. M-B. acknowledges that he would be willing to see his father if he saw that his father was “good” and would attend reconciliation therapy if his mother told him to.

[80] While a trial would be better suited for determining issues related to therapeutic counselling, a trial is still far off in this matter, and it is not in T. M-B.’s best interest to delay unnecessarily. There is sufficient evidence before me to make a determination.

[81] While MacPherson J. did not explicitly order reconciliation therapy at the case conference, Her Honour did order that the parties were to jointly retain a counsellor as soon as possible. The parties made submissions about what efforts had been made to jointly retain someone, but there is no evidence before me of those efforts.

[82] I have considered the above referenced factors and, in my view, in-person parenting time between the applicant and T. M-B. in a therapeutic setting should commence immediately.

W. M-B.

[83] There are no concerns expressed by the OCL or the respondent regarding the applicant’s parenting time with W. M-B. Parenting time with W. M-B. should increase immediately. The applicant shall have parenting time with W. M-B. on alternate weekends as well as video parenting time.

Supervised Parenting Time

[84] The respondent seeks to require ongoing supervised parenting time for the applicant’s parenting time with W. M-B.

[85] Price J. in V.K. v A.K., 2018 ONSC 7290, addressed the burden of establishing the need for supervised access and the purpose of supervised access:

[43] It is not in the interests of children for courts to place the onus on a parent to demonstrate why he/she should be allowed to exercise unsupervised access to his/her children. Rather, the onus should be on a parent who seeks to restrict the other parent’s access to demonstrate why that parent’s access must be supervised. In C.G. v. M.G., (2009), A.T. McKay J. stated:

Supervised access is not the norm in custody and access disputes. When employed, it should operate as a temporary measure to resolve ongoing difficulties regarding access. For an order for supervised access to be made, it requires evidence of unusual or exceptional circumstances. The onus is on the parent who seeks to limit access to prove that the restrictions are in the best interests of the child.

[44] Supervised access is a tool reserved for exceptional circumstances. The court sometimes employs it where the benefit a child would derive from contact with a parent must be balanced against the risk of harm to the child that such contact may entail, or where, as a temporary expedient, it may overcome a cautious custodial parent’s initial fear that the other parent, due to inexperience or past misconduct, is incapable of properly caring for their child. However, as the Ontario Court of Appeal noted in Montgomery v. Montgomery, (1992):

The purpose of supervised access, far from being a permanent feature of a child’s life is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy.

[86] Supervised parenting time with W. M-B. has been in place for almost a year. The respondent has not satisfied the court that supervised parenting should continue. There is no need for further supervised parenting time with W. M-B.

Joint Decision-Making

[87] Although the notice of motion seeks joint decision-making, the draft order does not address this relief.

[88] It is too early to determine whether joint decision-making is appropriate, and there is insufficient evidence to make such a determination.

[89] Until the issue of decision-making is determined, the respondent is to disclose to the applicant information about important decisions that are made on a day-to-day basis and provide contact information and consent to obtain information from all professionals involved with the children, their school, and their extracurricular activities. The applicant is entitled to request and obtain information from these professionals and the school. He is also entitled to make appointments with the school and professionals and attend extracurricular activities of W. M-B.

Security for Costs

[90] In submissions and in the applicant’s factum, counsel for the applicant seeks security for costs. However, the original notice of motion and the draft order filed in CaseLines make no mention of security for costs. The applicant added security for costs to the notice of return of motion.

[91] No legal authorities and principles for making an order for security for costs or the appropriateness of security for costs in these circumstances were brought to the attention of the court. The sole basis advanced for security for costs is the non-payment of the costs order. In my view, an order for security for costs in a parenting time and decision-making application, on the facts before me and at this time, is not appropriate. None will be ordered.

Outstanding Costs

[92] The costs ordered by Donohue J. on March 25, 2022 have not been paid.

[93] The respondent has put before the court evidence that she has tried to pay some small instalments of those costs directly to the respondent. The applicant says that any payments should be made to his lawyer, not to him directly. This is for accounting and evidentiary purposes and to avoid conflict. I agree with this approach.

[94] The respondent says she cannot afford to pay the costs order. A suggestion was made that costs could be set off against support. No motion for that relief is before me.

[95] Donohue J.’s cost order cannot be ignored, for whatever reason. Orders are not suggestions. They must be followed. The costs remain outstanding and must be paid. Payments should be made to the applicant’s counsel. If the costs ordered are not paid forthwith, the applicant may seek appropriate relief.

Order Made

[96] I make the following temporary order:

1. The applicant father shall have parenting time with W. M-B., commencing immediately, as follows: a. Alternate weekends from Friday at 4:00 p.m. until Sunday at 6:00 p.m.; b. The applicant father or his designate shall pick-up W. M-B. on Friday in the Beamsville area and the respondent mother or her designate shall pick up W. M-B. on Sunday in the area where the applicant’s family lives; c. The parties, through counsel, will notify each other of the identities of their designate drivers; d. The parties, through counsel, will agree on a public location for the exchanges and may vary the locations of the pick-ups and drop-offs in writing and on consent, in advance, through counsel; e. If a parenting weekend is a long weekend, statutory holiday, or Professional Development day, the applicant father's parenting weekend shall be extended to include either the Friday or the Monday depending on whether the statutory holiday or Professional Development day is on a Friday or a Monday – pick-up and drop-off times otherwise remain the same.

2. The applicant father shall have parenting time with W. M-B. for the 2023 Easter weekend from Thursday at 4:00 p.m. until Easter Monday at 6:00 p.m.

3. The applicant father shall have one full week of parenting time with W. M-B. in July and one full week in August 2023, to be negotiated through counsel.

4. The applicant father will have W. M-B. for Christmas Break 2023 from the last Friday of school before the Christmas Break at 5:00 p.m. until December 26, 2023 at 5:00 p.m. when the children shall be picked up by the respondent mother or her designate and the children shall remain in the respondent mother's care until after New Year's Day and the regular alternating weekend parenting time for the applicant father shall resume the first weekend after New Year’s Day and every other weekend thereafter.

5. Unless otherwise ordered by the court on a final basis, the applicant father shall have March Break with W. M-B. in 2024 from Friday after school until 6:00 p.m. on the Sunday at the conclusion of March Break.

6. W. M-B. shall be with the applicant father on Father’s Day, notwithstanding the parenting schedule.

7. The applicant father shall have telephone or video parenting time with W. M-B. initiated by the respondent mother at 6:00 p.m. every Wednesday and at 6:00 p.m. every Sunday when W. M-B. is not in his care.

8. The respondent mother shall have telephone or video parenting time each Saturday at 6:00 p.m. facilitated by the applicant father when W. M-B. is not in her care.

9. The parent having care of W. M-B. when a call is made shall make their best efforts to ensure her privacy during the call and that the quality and duration of the telephone or Zoom reception does not interfere with the call or the call participants’ ability to see/hear each other during the scheduled call.

10. The parties shall, no later than March 24, 2023, jointly retain a therapeutic counsellor. If the parties cannot agree on one, the parties shall immediately seek an order to appoint a therapeutic counsellor and shall file brief affidavits setting out their choice of counsellor, together with an affidavit from the counsellor attaching their CV, indicating they are prepared to act, and setting out a brief outline of the counselling proposal.

11. Parenting time between the applicant father and T. M-B. in the presence of a therapeutic counsellor shall commence forthwith upon the joint retainer of a therapeutic counsellor on the following terms: a. such parenting time will, to the extent it can be accommodated by the therapeutic counsellor, take place on the applicant father’s parenting weekends with W. M-B., or, alternatively on dates and times agreed upon between the therapeutic counsellor and the applicant; b. such parenting time will take place every two weeks for a duration to be determined by the therapeutic counsellor; c. both parties shall facilitate T. M-B.’s prompt registration for counselling and will forthwith provide any consent and documentation required by the therapeutic counsellor; d. both parties shall facilitate T. M-B.’s good faith participation and attendance at scheduled sessions and neither party may terminate the therapeutic counsellor’s retainer without court approval; e. the therapeutic counsellor shall, from time to time in his/her discretion, or when requested by counsel or the court, prepare a report that is to be provided to the parties and can be provided to the court, together with an affidavit confirming the accuracy of the facts and statements in the report and the source of the information contained in the report; f. subject to further direction of the court, the intention is that, if successful, parenting time with T. M-B. will eventually mirror parenting time with W. M-B.;

12. The respondent mother shall forthwith provide to the applicant father all contact and other relevant details for the children's health care, education, activities, sports, service provider or other important events concerning the children including their home address, school(s) where they attend, and any changes in the foregoing.

13. If required by any professional, school, service or activity provider, the respondent mother shall sign authorizations for the applicant father to receive the above information about the children.

14. Each party shall provide particulars of their employment, or any change in employment to the other.

15. Each party shall provide to the other a paystub for the week ending June 30 and December 31 of each year and copies of their 2020, 2021 and 2022 as well as future income tax returns inclusive of all schedules and supporting documents and all T4 slips, by June 30 of each year as well as all notices of assessment, and re-assessment if applicable, upon receipt.

[97] If the parties cannot agree on costs, they may submit a bill of costs and make written submissions consisting of not more than three double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:

1. By the respondent on or before March 31, 2023;
2. By the applicant on or before April 14, 2023.

[98] If no submissions or written consent to an extension are received by the court by end of day April 14, 2023, the matter of costs will be deemed to have been settled.

M. Bordin, J.

Released: 2023-03-16

COURT FILE NO.: FC-21-00000616-0000 DATE: 2023-03-16 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT B E T W E E N: A.B. Applicant - and - S.M. Respondent REASONS FOR DECISION M. Bordin, J. Released: 2023-03-16