Milne v. Milne, 2023 ONSC 27

Court File and Parties

COURT FILE NO.: FS-19-13423-0001 DATE: 2023-01-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mo Yi (Jessie) Milne, Applicant – and – Brian Milne, Respondent

Counsel: Heng (Pandora) Du, for the Applicant Lauren Hanna, for the Respondent

HEARD: December 15, 16, 2022

J. Steele J.

1This is a motion by the respondent, Brian Milne (“Brian”), for a finding that the applicant, Jessie Milne (“Jessie”) is in contempt and seeking certain remedies. Jessie brings a cross motion seeking the dismissal of Brian’s contempt motion and an order that a request be made to the Office of the Children’s Lawyer (“OCL”).

2Brian seeks an order:

• That Jessie pay certain fines;
• Enrolling the children in the Family Bridges Program, which includes a 4-day Family Bridges workshop followed by a vacation of at least 5 days with Brian and a 90-day suspension of all contact and communication between the children, Jessie, their maternal grandmother, and Jessie’s friends, and bringing the children to the court when the court releases its judgment; and
• Requesting police assistance in enforcing parenting orders.

3Brian has not had meaningful parenting time with the parties’ children for about a year and a half. This needs to be remedied. The issue is how.

4The parties agreed in advance of the long motion that they would cross examine the parties on their affidavits. They also agreed that there would be viva voce testimony from other witnesses.

5There was disagreement, however, on the admissibility of one expert report and whether the expert could testify. This was addressed at a voir dire at the outset of the long motion.

Background

6The parties separated on November 26, 2017. They have two children, CCM, born September 13, 2011, and CLM, born October 3, 2014.

7Brian and Jessie entered into a separation agreement on August 22, 2019 (the “Separation Agreement”). The Separation Agreement resolved the issues of parenting and child support, among other things. The parties agreed to a shared parenting schedule with joint decision making. The initial schedule was 2-2-3.

8When the pandemic hit, the schedule changed to week-about.

9Starting in July 2021, Jessie unilaterally made changes to the week-about parenting schedule and tried to severely restrict Brian’s parenting time.

10Jessie brought a motion to overturn the parenting schedule, which was denied by Monahan J. on August 12, 2021 (the “Monahan Order”). Accordingly, there is a separation agreement and an order that provide for the week-about equal parenting schedule.

11Brian takes the position that Jessie is in contempt of the Monahan Order. Brian served his contempt motion initially in February 2022. It was adjourned in March 2022 in order for the family to attend reunification therapy with Joanna Seidel.

12Ms. Seidel was not available to commence therapy until May 2022. The parties had a few sessions with Ms. Seidel. However, those sessions ended abruptly in July 2022 after one joint family session.

Voir Dire

13Brian sought to call Dr. Jennifer J. Harman as a litigation expert witness in the proceeding. Jessie objected. I asked the parties for written submissions on this issue in advance of the motion and heard oral submissions at the outset.

14I informed the parties of my decision that Dr. Harman would not be accepted by the court as a litigation expert. I indicated that my reasons would be in my judgment.

15Under Rule 20.2(2) of the Family Law Rules where a party wishes to call a litigation expert, they are required to serve on the other parties, at least six days before the settlement conference, a report that must contain at a minimum the following:

1. The expert’s name, address and area of expertise.
2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise.
3. The nature of the opinion being sought and each issue in the case to which the opinion relates.
4. The instructions provided to the expert in relation to the case.
5. The expert’s opinion on each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including, i. A description of the factual assumptions on which the opinion is based, ii. A description of any research or test conducted by or for the expert, or of any independent observations made by the expert, that led him or her to form the opinion, and, for each test, A. An explanation of the scientific principles underling the test and of the meaning of the test results, and B. A description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results, and iii. An acknowledgement of expert’s duty (Form 20.2) signed by the expert.

16Leaving aside the timing of the service of Dr. Harman’s expert report, the report does not meet the criteria set out in the Family Law Rules. It is a generic article by an expert on the issue of parental alienation with no reference to the parties, the children, or the factual assumptions in this matter. The expert did not meet this family. Among other things, the expert report does not set out a description of the factual assumptions on which the opinion is based. Dr. Harman provides a report on parental alienation, but the report is not related to this family and whether there has been parental alienation. Dr. Harman provided a document in which she acknowledged that she has not reviewed the facts of this particular case, which was served on Jessie the day prior to the motion.

17Brian argued that a similar report by Dr. Harman was accepted by the court in Wilson v. Sinclair, 2022 ONSC 2154. However, in that case the issue of admissibility was not raised.

18Jessie argued that under the test adopted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Dr. Harman should not be admitted as an expert. In White Burgess the court set out a two-part test. First, the factors set out in R. v. Mohan, [1994] 2 S.C.R. 9 are considered as the first step on the threshold requirement of admissibility. Those factors are: a) relevance; b) necessity in assisting the trier of fact; c) the absence of any exclusionary rule; and, d) whether the expert in question is considered a properly qualified expert. If that threshold is met, the court uses its discretion at step two to weigh the benefits of admitting the evidence against the potential harm that could flow from its admission.

19In my view, although Dr. Harman is clearly an expert in parental alienation, I do not see how her report is necessary in assisting the trier of fact. As indicated above, her report is a generic article, not an opinion on whether there has been parental alienation in this case. Her report may serve to provide the court with information on parental alienation but does not provide the important information as to whether in Dr. Harman’s opinion there has been parental alienation in this case.

Analysis

The law re Contempt

20Family contempt motions are governed by Rule 31 of the Family Law Rules. If the court determines that a party is in contempt of the court, under Rule 31(5), it may order that the person:

• Be imprisoned for any period and on any conditions that are just;
• Pay a fine in any amount that is appropriate;
• Pay an amount to a party as a penalty;
• Do anything else that the court decides is appropriate;
• Not do what the court forbids;
• Pay costs in an amount decided by the court; and
• Obey any other order.

21The civil contempt remedy is one of last resort: Hefkey v. Hefkey, 2013 ONCA 44, para. 3. As stated by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. It is “an enforcement power of last rather than first resort.”

22As noted in K.M. v. C.M., 2022 ONSC 3287: “In high-conflict family law disputes, courts are encouraged to use a staged approach in which a declaration of breach precedes a formal contempt order. This allows the parties to reflect on their conduct and work on cooperative solutions that are in the best interests of the children.”

23For a person to be found in civil contempt, three elements must be proved beyond a reasonable doubt:

i. The order alleged to have been breached must state clearly and unequivocally what should and should not be done. ii. The party alleged to have breached the order must have actual knowledge of it; and iii. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels:

(Chong v. Donnelley, 2019 ONCA 799, para. 5)

24In the event that the court determines that the three elements for contempt are established, the judge must then consider whether they should exercise their discretion and decline to make a finding of contempt: Chong, para. 6.

Has contempt been established beyond a reasonable doubt in this case?

25The Monahan Order required:

• The week about parenting scheduled that was in place since March 2020 to be restored, effective Monday August 16, 2021 at 6:30 pm.
• Each party to actively support and encourage their children to resume the week-about schedule.

26Jessie submits that this is not a case where she prevented Brian from seeing or picking up the girls. On the contrary, the evidence supports Jessie’s statement that she made arrangements on numerous occasions for Brian to pick up the children without her, including picking up the children from their school, meeting at public places, and having third parties facilitate the exchanges. The children refused to go with Brian. For example, Brian acknowledged in cross examination that on 3 occasions Jessie arranged for him to pick the children up from school, but they would not go to his house with him. Jessie was not there at the school pick-up on those days and despite Brian’s best efforts the children would not go with him to his residence.

27Jessie submits that the Monahan Order does not place the onus on her to ensure that the children attend the visits with Brian. The Monahan Order simply sets out the parenting schedule. Jessie argues that the requirement to actively support and encourage the children to resume the week-about schedule is too vague.

28Based on the evidence before me, I am unable to find that Jessie breached the Monahan Order. The Monahan Order does not put the onus on Jessie to ensure that the children are delivered to Brian for his parenting time. The order does not state clearly and unequivocally what Jessie ought to have done. She cannot be found in contempt when the order does not place a clear and unequivocal obligation on Jessie.

29Further, there is ample evidence, including from third parties, that Jessie has made attempts to facilitate Brian’s parenting time with the children. She has come up with creative ideas such as guitar lessons at Brian’s house, she has initiated visits, suggesting counselling, facilitated Brian picking up the children form school, among other things. The children refuse to go to Brian’s house.

30In any event it is premature to make a finding of contempt against Jessie. This was the first motion brought following the Monahan Order. The only other court appearances since the motion before Justice Monahan were a TBST and conference regarding this contempt motion. There has not been a declaration of breach. Contempt is to be used as a last resort.

31I am dismissing the contempt motion. However, should Jessie fail to comply with the orders made below, Brian may bring another contempt motion.

Brian’s Parenting Time

32In making a parenting order, the court must take into consideration only the best interests of the child: section 16(1), Divorce Act. Section 16(3) of the Divorce Act provides that, in determining the best interests of the child, the court must consider all factors related to the circumstances of the child and sets out a non-exclusive list of factors. Section 16(2) of the Divorce Act provides that when considering the factors set out in section 16(3), “the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” Under section 17(1) of the Divorce Act the court has jurisdiction to make an order varying, rescinding or suspending a parenting order.

33Under s. 7.1 of the Divorce Act parties have a duty to exercise any parenting time or decision-making responsibility “in a manner that is consistent with the best interests of the child.” This includes protecting children from any litigation-related conflict: s. 7.2, Divorce Act.

34There is no doubt that the conflict between the parties and the current situation is having an impact on the children. The children are not being protected from the adult conflict. As Brian noted in his affidavit, one of the children penned “kill lists”, which were found by her teacher. These lists set out the names of some of her peers she did not like.

35Although Jessie has taken steps to try to arrange Brian’s parenting time on various occasions, I am concerned that there may be other messaging delivered to the children by Jessie. I am very concerned that Jessie may be providing negative messaging to the children regarding Brian and/or Brian’s place based on the following:

• The clinical intake consultation that was commenced with Joanna Seidel was to include a family session where the parties would deliver a joint narrative to the children “to correct any misperceptions that children may be having about their father”. Ms. Seidel’s report indicated that “the message that was expected to be delivered to the children was that they were going to focus on the future and developing a relationship with their father and that the family therapist was going to guide them through this process.” However, Ms. Seidel reported that the session did not proceed as planned. Instead, it “trailed off into a discussion, mainly led by Ms. Milne, about the concerns that the children had about their father.” Ms. Seidel asked Jessie to leave the session so the children could have some time with their father.
• In her evidence Ms. Seidel referred to her handwritten notes of June 28, 2022 of the family session. Ms. Seidel’s notes, which she stated she made the day of the session, indicated that Jessie discussed the children’s concerns about Brian, including not feeding them enough, and not buying them things. The children were present at the session and would have heard Jessie’s complaints.
• Jessie’s affidavit evidence was that “Brian’s refusal to reflect on and to adjust his parenting style is the cause of the breakdown of his relationship with the girls.”
• Jessie had made a complaint to the Children’s Aid Society following a dizzy spell suffered by one of the children and concerns that Brian was not feeding the children enough. This was also one of the reasons Jessie sought the parenting change in 2021. However, the CAS closed its file with no findings of risk of harm to the children. Justice Monahan did not find any basis for Jessie’s concerns, dismissing her motion. He noted that there was no medical evidence and that the hospital materials provided following the dizzy spells identified a number of potential causes, but lack of food was not listed. Justice Monahan further stated that the test results from the hospital do not indicate any concerns of the child being underfed or malnourished. Nonetheless, these “food sufficiency” issues are repeated by Jessie and parroted by the children.

36I am also of the view that Brian has made some statements in front of the children and taken certain actions that have not been helpful or child focused:

• For example, the evidence of Hung Zee, a friend of both parties, is that the older child told her that Brian had told her a few times that he would put Jessie in jail if the children do not go with him. One of the children painted a picture in her class depicting a woman in a cage. She described the picture to the school social worker as Jessie in jail, because she heard Brian mentioning that he would send Jessie to jail if the children did not go to his place.
• Brian sent a video to the children respecting narcissistic abuse. Although Brian stated he did this to educate the children about narcissism and provide a general life lesson to them, it is clear he was referring to Jessie.
• As discussed further below, Brian has not encouraged counselling for the children unless it was on his terms.

37Brian has been laser focused on re-establishing his time with the children, without trying to understand their underlying issues and/or getting them help. On February 6, 2022, Jessie told Brian that she had hired a psychologist and asked if Brian wanted to have family counselling with the children. Brian responded: “I don’t want family [counselling] right now.” Brian also refused to consent to a new school social worker being assigned to assist the children.

38Jessie hired Dr. Bodenstein-Kales without Brian’s knowledge or consent. Dr. Bodenstein-Kales stated that she understood that she was being engaged to help repair the relationship between Brian and the children. While it may seem odd that Brian was not participating from the outset, Dr. Bodenstein-Kales’ evidence was that she felt it was important to establish a relationship of trust with the children before inviting Brian to participate. Dr. Bodenstein-Kales invited Brian on several occasions to join the children at the counselling. However, Brian was only interested in getting Dr. Bodenstein-Kales’ notes. The following email was sent to Brian by Dr. Bodenstein-Kales on February 20, 2022:

Thanks for your email. Jessie contacted me in order to facilitate a reunification process with the girls and you. I understand that the girls have refused to stay at your place since the summer of 2021 and that they refuse to see you see you at the present time. I also understand that Jessie proposed that you work with the girls and I in our sessions to promote reunification and that you declined the offer. It would be extremely helpful if you agree to participate in the reunification process so that the girls can resume a good relationship with you.

39The children saw Dr. Bodenstein-Kales four times. They stopped seeing Dr. Bodenstein-Kales on February 27, 2022 at Brian’s request.

40The relationship between Brian and the children needs to be re-established. Ms. Seidel in her report indicated that “the children’s relationship with their father has been so deeply disrupted.” Her evidence was that there is an obvious concern because the longer the children go without having a relationship with their father, the more entrenched the situation becomes. However, Ms. Seidel has resigned from assisting this family due to unfounded spurious allegations made against her by Jessie. Ms. Seidel indicated that every time you open the door to a new therapist to try outpatient therapy again, it may be less likely to succeed.

41There has clearly been a breakdown in the relationship between Brian and the children, although the precise cause of the breakdown is not clear. Therapy is needed for the children and to assist in the mending of the relationship between Brian and the children. Brian has proposed Family Bridges Program, which is used where there is extreme parental alienation. For the reasons set out below, I have determined that the Family Bridges Program is not appropriate at this time. However, the children need to get back into therapy. Further, reunification therapy with the children and Brian, focused on mending the relationship, needs to resume as soon as possible. In my view, there has not yet been a concerted effort with therapy. The process with Ms. Seidel was thwarted by Jessie’s unfounded allegations against the therapist. The other counsellors that Jessie has engaged have not been with Brian’s consent or knowledge and the therapy was prematurely terminated as a result. As the relationship that needs to be repaired is between Brian and the children, it is important that he be involved in the process. Accordingly, I am ordering reunification therapy for Brian and the children and individual therapy for the children.

42The week about schedule has not been followed for about a year and half. The children have refused to attend their parenting time with Brian. He has barely seen them. Brian stated in his affidavit that apart from two one-hour visits on October 30, 2021 and December 26, 2021, and a few visits to get a drink at Starbucks or to get bubble tea, he has had no in-person parenting time with the children since August 2021. Justice Monahan noted in his August 12, 2021 endorsement that “[t]he children have a strong bond with both their parents and have a right to have those bonds nurtured and supported.” However, much time has passed since then and steps now need to be taken to reestablish the relationship.

43Brian stated in his affidavit that he wants to focus on solutions in order to reestablish his relationship with the children. I agree that needs to be the focus. The children have a right to a relationship with both their parents. However, the only solution Brian proposes is the Family Bridges Program, which I have determined is not appropriate at this time.

44I recognize that ordering the immediate continuation of the week about schedule would be setting everyone up for another contempt motion in a few weeks’ time, given that the children have barely seen Brian over the past year and a half. I note that Brian’s evidence was that visits were more successful when Jessie brought the children right to his door. I am putting the onus on Jessie to bring the children to Brian’s door for his parenting time.

45According, I am ordering the following:

• Each parent shall actively support and encourage the children to resume the week-about schedule.
• In any event, at a minimum, for the month of January, 2023 on Mondays and Wednesdays Jessie shall bring the children to Brian’s door at his condo after school for a 2-hour parenting time dinner with Brian. On Saturdays, Jessie shall bring the children to Brian’s door at his condo at 11 am for a 4-hour parenting time lunch/afternoon with Brian. At the conclusion of each visit, Brian shall return the children to Jessie’s residence.
• For the month of February, 2023, the children shall have parenting time with Brian on two weekends. Jessie shall bring the children to Brian’s door at his condo on Friday at 6 pm and Brian shall return the children to Jessie on Sunday at 6 pm. In addition, the parenting time on Mondays and Wednesdays set out above shall continue.
• For the month of March, 2023, the children shall have 9 days of uninterrupted parenting time with Brian during school March Break. Jessie shall bring the children to Brian’s door at his condo on the Friday before March Break at 6 pm and Brian shall return the children to Jessie 9 days later on the Sunday at the end of March Break at 6 pm. In addition, the parenting time on Mondays and Wednesdays set out above shall continue.
• Once therapy has commenced, the parties shall follow the recommendations by the reunification therapist, which Brian shall request be made in writing, to continue to increase Brian’s parenting time with the children with the goal of resuming the week-about parenting schedule.
• While either parent has overnight parenting time with the children, the children shall be permitted to speak to the other parent at least once per day if desired by the children by way of cell phone or video conferencing.
• Neither parent shall denigrate or speak negatively about the other parent in the presence of the children or within earshot of the children.

Request to Enroll the Children in the Family Bridges Program

46Brian has requested that the children be enrolled in the Family Bridges Program. This program requires the children to complete a 4-day Family Bridges workshop followed by a vacation of at least 5 days with Brian. In addition, there would be a 90-day suspension of contact between the children and Jessie. The program requires that there be a temporary change in decision making (from joint to sole decision making) and that the court order stipulate no contact between the children and the “favoured” parent for at least 90 days.

47As noted above, I have not found Jessie in contempt of the Monahan Order. Brian submits that under Rule 1(8)(g) of the Family Law Rules the court has broad remedial powers where a party fails to obey an order: a court may make “any order that it considers necessary for a just determination of the matter.” The Court of Appeal has interpreted this provision very broadly, including making an order for the enrollment of a mother and children in the Family Bridges Program: Bouchard v. Sgovio, 2021 ONCA 709.

48In order to fall under Rule 1(8)(g) of the Family Law Rules there would have to be a finding that Jessie has failed to obey a court order on the balance of probabilities. Although I was unable to find contempt, I am satisfied on a balance of probabilities that Jessie has breached the Monahan Order. This is consistent with the staged approach encouraged in high conflict family law matters. The Monahan Order requires the week about schedule, which has not been followed. Jessie cannot lay the blame for this on the children. She is the parent of an 8-year old and 11-year old, who need to have a relationship with their father. Jessie went to court to try to change the parenting time arrangement but was not successful. It is likely that there is subtle messaging being relayed by Jessie to the children. As set out in Jackson v. Jackson, 2012 CarswellOnt 10467, at para. 62, the following factors ought to be considered by the court when determining whether a parent has taken appropriate measures to apply their parental authority:

• Did the parent engage in a discussion with the child to determine why the child is refusing to go?
• Did the parent communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
• Did the parent offer the child an incentive to comply with the order?
• Did the parent articulate any disciplinary measures should the child refuse to comply with the order?

49On balance, I am satisfied that Jessie is not taking all the steps she ought to be taking to encourage the children to see Brian. There was evidence that on one occasion (only) she took away the children’s iPad, at Brian’s suggestion. But Jessie has not provided evidence that she tried to engage in a discussion with the children to determine why they refuse to see Brian. Jessie has not provided evidence that she has tried to incentivize the children to comply with the parenting schedule. Jessie refuses to bring the children to Brian’s door.

50The expectation of the court is that Jessie, as the parent who currently spends all the time with the children, will take steps to encourage the children to resume their parenting time with Brian. These steps include:

• Not giving the children the option re Brian’s parenting time. It is not their choice.
• Offering incentives and/or taking away privileges if the children are reluctant to follow the court order.
• Speaking positively about Brian in front of the children and NOT speaking negatively or denigrating Brian in front of the children.
• Bringing the children to Brian’s condo door for the parenting time exchanges.
• Reinforcing to the children that there is a court order in place that the family, including the children, must follow.

51In determining whether to make a therapeutic order, the court in Leelaratna v. Leelaratna, 2018 ONSC 5983, at para. 69, stated that the following factors are relevant to a judge’s discretion:

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?

52The court in Leelaratna indicated at para. 70 that the court may decline to make a requested therapeutic order where the court is not able to clearly determine why there is a breakdown in the relationship between a parent and a child. The court stated this was “because the therapy proposed was specifically aimed at addressing a particular diagnosis which had not yet been made.” This is the case here. The Family Bridges Program is for cases where there is severe parental alienation. There has not been a diagnosis of parental alienation in this case.

53In Barrett v. Huver, 2018 ONSC 2322 the father was alleging that the mother was alienating the child and he was proposing the Families Moving Forward program. The court stated, at para. 17, that it was impossible to determine on the “competing, contradictory affidavits, untested by cross-examination, and in the absence of any expert evidence, the reason or reasons for the fractured relationship between the father and the children.”

54There was no expert evidence before me that the Family Bridges Program would benefit the children. This would be a very significant change for the children. Further, while Brian is of the view that there is parental alienation, and certainly there are issues in the relationship between him and the children, the family does not know the cause for the children’s refusal to see Brian.

55There is no evidence that enrolling the children in the Family Bridges Program would be beneficial to the children. Further, Brian’s evidence regarding the Family Bridges Program was first that he and the children would have to move their residence for the 90 days and the children would have to be in another school to avoid contact with Jessie. The following day his counsel indicated that was not the case. However, there was no evidence regarding how the children would avoid contact with Jessie for the 90 days if they remained at Brian’s residence, which is close to Jessie’s, and remained in the same school. In any event, it does not appear as though Brian has a comprehensive plan in place for the children to participate in this extreme program.

Request for Police Enforcement

56Brian has also requested that police enforcement be ordered in this case. The statutory authority for police enforcement is set out in section 36 of the Children’s Law Reform Act (the “CLRA”), which provides:

(1) Where a court is satisfied upon application by a person in whose favour a parenting order or contact order has been made with respect to a child that there are reasonable and probably grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be.

(2) Where a court is satisfied upon application that there are reasonable and probably grounds for believing,

a. That any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child; b. That a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or c. That a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

57The court has noted that police enforcement may be needed “for a one time retrieval of a child from a dangerous or inappropriate situation, where time is of the essence”: Patterson v. Powell, 2014 ONSC 1419, at para. 23. The court in Patterson further stated at para. 24:

But when ongoing police enforcement clauses are requested as a long-term compliance strategy in temporary or final orders, courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit – most particularly, the children themselves:

58This is not a case where Jessie prevented Brian from picking up the children. As noted above, Jessie made multiple attempts to arrange for Brian to pick up the children without her, meet at public places and have third parties facilitate the exchanges. Police enforcement may be needed for a one-time retrieval of a child from a dangerous situation. However, that is not the case here. Ongoing police enforcement is not appropriate in this case.

Office of the Children’s Lawyer

59Jessie seeks the involvement of the OCL. Brian is opposed. Brian’s position is that the children would repeat to the OCL what Jessie has told them. Further, Brian submits that appointing the OCL will merely duplicate Ms. Seidel’s work – she conducted a lengthy intake process with the family before determining that they needed family reunification therapy.

60Jessie had sought the involvement of the OCL at the motion before Justice Monahan. He dismissed her request for the involvement of the OCL on a without prejudice basis for the issue to be revisited in the future if circumstances change. In my view, circumstances have changed. Jessie brought her motion before Justice Monahan in August 2021. At that time, the parenting schedule had not been followed for about a month after Jessie unilaterally decided to change the schedule. Now, more than 15 months have expired since Jessie’s motion before Justice Monahan. Brian has barely seen the children during that period and the parenting schedule is not being followed. The children are refusing to go with Brian.

61Section 89(3.1) of the Courts of Justice Act provides that the OCL may act as the legal representative of a minor who is not a party to the proceeding, at the request of a court. Section 112 of the Courts of Justice Act authorizes the OCL to cause an investigation to be made and to report and make recommendations to the court on all matters concerning the custody of or access to the child and the child’s support and education: Stow v. Davidson, 2017 ONSC 6915, para. 19. If a referral is made to the OCL, the OCL determines whether it will become involved.

62Ms. Seidel indicated that the OCL was an option, but she was unable to say whether it would be a good recommendation for this family at this point.

63Given that I am ordering reunification therapy for Brian and the children and therapy for the children, in my view the OCL referral order is not necessary at this time. The reunification therapist and the individual therapist will be able to provide the parties and the court with more information on the underlying issues, among other things.

Disposition and Costs

64Brian and the children shall attend reunification therapy. The therapist shall be selected in accordance with the following procedure:

• Brian shall provide Jessie with the names of 3 reunification therapists within 7 days;
• Upon receipt of the 3 names, Jessie shall have 4 days to select a therapist and inform Brian;
• If Jessie fails to make a selection within the 4-day period, Brian may select the reunification therapist;
• Brian shall notify Jessie at least one week prior to each scheduled appointment with the reunification therapist.
• Jessie shall bring the children to the reunification therapist appointments; and
• Each party shall provide any intake forms, authorizations or other documents required by the therapist within 10 business days of the request.

65The costs of the reunification therapy shall be paid 55% by Jessie and 45% by Brian, subject to additional re-allocation to Jessie at trial.

66The reunification therapist shall be directed to prepare a report that comments on his/her observations as to why the children are reluctant to see their father and father’s family.

67If Jessie takes any steps to thwart the process with the reunification therapist, including not bringing the children to the appointments on time, making spurious allegations about the therapist, or unreasonably cancelling or rescheduling appointments, Brian may return to the court on an urgent basis with his request for the Family Bridges Program.

68The children shall each attend individual therapy. The therapist shall be selected in accordance with the following procedure:

• Jessie shall provide Brian with the names of 3 therapists within 7 days;
• Upon receipt of the 3 names, Brian shall have 4 days to select a therapist and inform Jessie;
• If Brian fails to make a selection within the 4-day period, Jessie may select the therapist for the children;
• Jessie shall bring the children to the therapist appointments. However, Jessie shall not participate in the appointments unless specifically directed to do so by the therapist; and
• Each party shall provide any intake forms, authorizations or other documents required by the therapist within 10 business days of the request.

69The therapist shall be directed to prepare a report that comments on his/her observations as to why each child is reluctant to see her father and father’s family.

70The costs of the therapy shall be paid 55% by Jessie and 45% by Brian, subject to additional re-allocation to Jessie at trial.

71Brian shall inform the therapist and the reunification therapist about the unfounded allegations made against the prior therapist by Jessie so the therapists can determine whether they will require another person in the room for the therapy.

72Jessie’s request for a referral to the Office of the Children’s Lawyer is dismissed.

73With regard to parenting time:

• Each parent shall actively support and encourage the children to resume the week-about schedule.
• In any event, at a minimum, for the month of January, 2023 on Mondays and Wednesdays Jessie shall bring the children to Brian’s door at his condo after school for a 2-hour parenting time dinner with Brian. On Saturdays, Jessie shall bring the children to Brian’s door at his condo at 11 am for a 4-hour parenting time lunch/afternoon with Brian. At the conclusion of each visit, Brian shall return the children to Jessie’s residence.
• For the month of February, 2023, the children shall have parenting time with Brian on two weekends. Jessie shall bring the children to Brian’s door at his condo on Friday at 6 pm and Brian shall return the children to Jessie on Sunday at 6 pm. In addition, the parenting time on Mondays and Wednesdays set out above shall continue.
• For the month of March, 2023, the children shall have 9 days of uninterrupted parenting time with Brian during school March Break. Jessie shall bring the children to Brian’s door at his condo on the Friday before March Break at 6 pm and Brian shall return the children to Jessie 9 days later on the Sunday at the end of March Break at 6 pm. In addition, the parenting time on Mondays and Wednesdays set out above shall continue.
• Once therapy has commenced, the parties shall follow the recommendations by the reunification therapist, which Brian shall request be made in writing, to continue to increase Brian’s parenting time with the children with the goal of resuming the week-about parenting schedule.
• While either parent has overnight parenting time with the children, the children shall be permitted to speak to the other parent at least once per day if desired by the children by way of cell phone or video conferencing.
• Neither parent shall denigrate or speak negatively about the other parent in the presence of the children or within earshot of the children.

74Brian’s contempt motion is dismissed without prejudice to him bringing another contempt motion if Jessie fails to comply with the orders set out herein.

75If the parties are unable to agree on costs by January 20, 2023, they shall notify my judicial assistant. In such case, Jessie shall file her written submissions of up to 5 pages in length (plus bill of Costs and any offers to settle) by February 3, 2023. Brian shall file his written submissions of up to 5 pages in length (plus Bill of Costs and any offers to settle) by February 17, 2023.

J. Steele J.

Released: January 3, 2023

COURT FILE NO.: FS-19-13423-0001 DATE: 2023-01-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Mo Yi (Jessie) Milne, Applicant – and – Brian Milne, Respondent

REASONS FOR DECISION

J. Steele J.

Released: January 3, 2023