COURT FILE NO.: FC-22-535-00 DATE: 20230913 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

R.S. Applicant mother – and – S.A. Respondent father

Thomas J. MacLennan, for the Applicant mother Philip Viater, for the Respondent father Alex Dutka, counsel for the Office of the Children’s Lawyer (the “OCL”) on behalf of the child, I.S.

HEARD: August 22, 2023

JUSTICE ALEX FINLAYSON

Part I: Nature of This Motion

[1] The Respondent (the “father”) brings a motion to compel the child, I.S., age 15, to attend “reunification therapy” with one of four proposed therapists listed in his Notice of Motion. If either or all of the therapists are unable or unwilling to perform the therapy, then the father proposes that the parties would submit additional names to the Court and the Court would then select a further, substitute therapist. The father would also have the Court order that the cost of the therapy, and any report of the therapy sessions that might be needed, be shared as a section 7 expense.

[2] In addition, the father seeks a number of ancillary Orders in aid of the reunification therapy that he proposes. For example, he asks for Orders requiring the parents to: (a) participate in the reunification therapy as directed by the therapist; (b) ensure that the child attends; (c) attend sessions themselves; (d) encourage and promote the therapy; and (e) make the child available for parenting time if the therapist directs.

[3] The father would have the Court prohibit either parent from terminating the therapy unilaterally, without both of their consents. And if the therapist were to terminate therapy over the objection of one or both parents, the father wants to bring a further motion, to determine if a replacement therapist should be selected.

[4] The father says that he is not trying to force the child to see him, if I.S. is not ready to do so at this time. But he seeks a “neutral third party to assist in figuring out the true issue”. He wants to talk about his “alleged abuse” if that is the true issue. Or, he wants to talk about the mother’s influence of the child, which he believes is the cause of the rift in his relationship with the child. The father worries that if the Court does not order reunification therapy now, the rift in his relationship with I.S. will become permanent.

[5] The OCL opposes this motion, based on the child’s views and preferences. As I explain in more detail below, the evidence before me at this stage of the case, is that the mother has behaved inappropriately in terms of exposing I.S. to the parents’ conflict. But despite the father’s blanket denial of it, this child has also been exposed to years of family violence by the father directed at the mother. In this overall context, it is understandable that the child is “fed up” with his parents’ dynamic, and the years of litigation concerning him. He wants the litigation to stop.

[6] Moreover, the child is not actually refusing to see his father. Rather, he is willing to see his father. In fact, he has been seeing his father. But he is not willing to go to therapy. If this Court orders him to attend therapy, the child has told his counsel that he will refuse to go. The OCL’s clinician’s view, is that an order compelling the child to attend therapy, may cause more harm to the child’s evolving relationship with his father than it will do any good.

[7] Like the OCL, the mother supports the child’s position. Her affidavit evidence respecting the therapy issue is otherwise in the nature of providing facts, that this Court should take into account in coming to a decision.

[8] Separately, to their credit, the parties did settle all of the property and support issues, except one, which they agreed I would decide on this motion. There remains a dispute between the parents about the extent of the father’s obligation to maintain a life insurance policy to secure child support. Although he has a higher amount of life insurance in place, the father seeks this Court’s determination that he is only required to maintain $50,000.00 to secure his child support obligation. He asks for an order permitting him to reduce the amount of life insurance by $6,600.00 per year, commencing January 1, 2025, so long as “his base child support payments are up to date”. This is the amount of his yearly child support obligation that I ordered on a final basis on consent, on April 20, 2023.

[9] Through counsel during oral argument, the mother agreed to the annual step-down amount. But she did not agree to the father’s proposal about the initial quantum of life insurance that he must maintain now. She believes that he requires at least $225,000.00 to secure child support. Her calculations are premised on the father paying child support for a further 7 years, in addition to sharing the cost of two degrees. She estimated the costs of the latter, assuming that the child will be living away from home while pursuing the two degrees.

[10] For the reasons that follow, the father’s motion to compel the child to attend reunification therapy with him is dismissed. The father shall maintain a life insurance policy in the amount of $165,950.00 to secure child support, on the terms set out below.

Part II: Background

[11] The parties were married on December 17, 2002. In the years that followed, they have had a very volatile relationship, marked with family violence, separations and reconciliations, a prior round of litigation, the involvement of the OCL two times, and a number of contacts with multiple child welfare agencies and police forces, and crown attorneys.

[12] According to the father, the parties separated for the first time in 2011. The mother disputes this. The mother says that there was an earlier separation between 2008 and 2010, triggered by the father’s assault of her. She agrees that there was another separation in 2011, after another assault.

[13] Following the 2011 separation, the parties were involved in their first round of family litigation. It was in that case that the OCL was appointed for the first time. Back then, the OCL agreed to investigate and prepare a report pursuant to section 112 of the Courts of Justice Act. Both the mother and counsel for OCL appointed in this round of the litigation have filed that earlier OCL report. The clinician who authored the report back then made findings of alcohol use and family violence on the part of the father, and I.S.’ exposure to it.

[14] The parties have advised this Court that they resolved the earlier litigation by way of a separation agreement, in around 2016. They agreed to joint custody, that the child’s primary residence would be with the mother, and the father had access on alternating weekends and once during the mid-weeks for an overnight.

[15] It appears that the parties reconciled soon after they signed the separation agreement. Their final separation occurred on December 18, 2021. I address below the allegation of family violence that occurred on this occasion.

[16] The child, I.S., has just started grade 11. The parental conflict has been going on for the majority of his life. Despite that, I.S. is an excellent student. He is committed to his studies. He is studying hard and undertaking volunteer work to get into a university program. According to the mother, he wants to become a medical doctor. As I said earlier in the introduction portion of these reasons, he is “fed up” with his parents.

Part III: Prior Proceedings

[17] Here I provide a brief history of the prior proceedings in this round of the litigation.

[18] On June 8, 2022, the mother filed a 14B Motion seeking leave to bring an urgent motion to address the sale of the matrimonial home. On June 21, 2022, I endorsed that the parties could appear before me for a case conference instead. I indicated that I would consider scheduling a motion thereafter, depending on the outcome of their discussions about the matrimonial home.

[19] As it turned out, a motion about the sale of the matrimonial home ended up being unnecessary after the conference. At the conference on July 6, 2022, the parties resolved the issue, which included an agreement to an interim distribution of the sale proceeds on closing. The parties also empowered me to rule on certain adjustments, as well as their dispute over the costs of the mother’s 14B Motion and the July 6, 2022 case conference, at the next court date, in the absence of an agreement on those issues beforehand.

[20] The father alleges that the mother refused to cooperate to get the child counselling, and then she has delayed this motion. But I note that it was the father who initially refused counselling around this time frame.

[21] Before the parties had even appeared before this Court for the first time, a child protection worker with the Durham Children’s Aid Society (the “Society”) recommended that the child receive counselling. On March 2, 2022, the mother proposed counselling between the father and the child.

[22] The father did not attach to his affidavit of June 29, 2023 any evidence of a timely response on his part. That is because he did not address the mother’s proposal for counselling in any substance. Rather, in the body of his affidavit, the father says that he was “not actually certain that [he and the child] needed reunification as [he was] not [then] seeing [the child] at all.” He blamed the mother for “simply keeping him away”.

[23] Apparently, the father was only prepared to “consider” whether reunification was needed. It was not for a further two months, on May 18, 2022, when the father changed his position and began proposing reunification therapy. The father sets out the subsequent requests that he made for therapy after this over a number of paragraphs in his affidavit. But as the mother points out, he did not really raise the therapy issue again until the next court date approached.

[24] In any event, the parties discussed parenting issues at the next case conference on November 15, 2022. My Endorsement of that date states that the parties each had different perspectives about the state of the child’s and the father’s relationship with each other, although I noted that the father and I.S. had been arranging visits between themselves. The mother expressed her concern that the child had been exposed to family violence in the relationship, whereas the father accused the mother of interfering in his relationship with I.S.

[25] The father did propose reunification therapy, but that was not agreed to. I appointed the OCL, as the child’s consent to such a process was going to be in issue. I made a disclosure Order. I otherwise granted leave for a motion on various financial issues. I also ruled on the adjustments and costs, then still before me pursuant to the July 6, 2022 Endorsement.

[26] There was another email exchange between counsel dated December 5 and December 6, 2022 that touched upon reunification therapy, although it seems that at least part of the reason for this email exchange pertained I.S.’ attendance at a family funeral, to which the child did not wish to attend. There is another email from counsel on January 12, 2023. In the latter email, the father’s counsel indicated that he had instructions to bring this motion.

[27] At some point, counsel for the OCL asked the father to hold off bringing a motion until he was able to hold a disclosure meeting. The disclosure meeting occurred on April 5, 2023.

[28] The father says that at the disclosure meeting, Mr. Dutka reported that I.S. did not want to attend reunification therapy but he would attend if ordered by the Court, or consented to by the parents. The father says the mother refused.

[29] There was a settlement conference before me two weeks later, on April 19, 2023. It did not fully proceed on its merits. There continued to be outstanding disclosure issues. Despite that, the parties ended up resolving the property and support issues. The parties reappeared before me on April 20, 2023 with Minutes of Settlement and I made a Final Order on consent.

[30] In regards to child support, the parties agreed that the father would pay $550.00 per month commencing May 1, 2023 based on an income of $59,400.00. The Court’s Final Order for child support was made under the Divorce Act. The parties also agreed to share equally any special or extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines.

[31] The parties agreed that I was not disqualified from hearing this motion. I ordered some collateral disclosure relating to the parenting issues, and I scheduled this long motion for August 22, 2023. Because the parties had not settled the life insurance issue, they also agreed to add that issue in this motion, too.

[32] On April 19, 2023, Mr. Dutka reported to the parents that I.S. was no longer willing to attend reunification therapy, even if ordered to go, representing a slight hardening of his earlier position. The father blames the mother for this change in position. During the submissions on this motion, the father’s counsel was critical of the OCL, particularly the clinician assisting the OCL, for what he characterizes as their failure to probe into the reasons underlying the child’s refusal, and for the absence of evidence that the OCL explained the nature of reunification therapy to I.S. for the child to make an informed decision.

[33] Karen Guthrie-Douse is the clinician with the OCL who is assisting Mr. Dutka. She was assigned to work with Mr. Dutka on May 1, 2023, 10 days after the Court’s Final Order of April 20, 2023, after this motion had been scheduled, and after the child’s slight change in position.

[34] Ms. Guthrie-Douse holds a MSW from the University of Toronto that she obtained in 1990. She is a member of the Ontario Association of Social Workers. She is a Registered Social Worker with the Ontario College of Social workers and Social Service Workers. Ms. Guthrie-Douse has been a clinical agent with the OCL since 2004. She has also worked in private practice providing assessment and counselling services since 1998, specializing in separating and divorcing families since 2006. In her capacity as a clinician with the OCL, Ms. Guthrie-Douse has prepared a number of reports pursuant to section 112 of the Courts of Justice Act, although in this case she is providing assistance to counsel appointed under section 89. She has also testified in court cases.

[35] To discharge her mandate, Ms. Guthrie-Douse met with I.S. on four occasions. Mr. Dutka had met with the child four times as well, before Ms. Guthrie-Douse’s involvement. In Ms. Guthrie-Douse’s view, I.S. is mature, and his views are independent.

Part IV: Issues and Analysis

A. Applicable Legal Principles Respecting Orders for A Child’s Therapy

[36] The father’s motion for an order for reunification therapy is governed by sections 16 and 16.1 of the Divorce Act. There is broad authority to make “other corollary orders about a child’s life”, which includes an order for therapy. The Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A (the “HCCA”) does not limit the Court’s jurisdiction to order this, although there may be practical limitations: see A.M. v. C.H., 2019 ONCA 764 ¶48, 51, 71.

[37] The Court’s only focus in making such an order must be the best interests of the child in question: see section 16(1). The Court is to consider all factors related to the circumstances of the child when determining best interests. Section 16(2) requires that when considering the factors in section 16(3), the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 16(3) requires the Court to consider all factors related to the child, but there is a non-exhaustive list of eleven criteria in the section.

[38] In Gee v. Gee, 2023 ONSC 2992, Leach J. considered whether to order reunification therapy. At ¶11, Leach J. cited various principles from A.M. v. C.H. and other decisions. Leach J. found that the Court’s decision was to be fundamentally governed by the best interests’ test. The Court recognized that the child’s views were just one of several factors to consider, yet greater weight is given to that factor as the child’s maturity increases. Leach J. noted that mature adolescents in particular have strong claims to autonomy.

[39] Moreover, while therapy orders can be a helpful measure to repair a fracture in a family, Leach J. also repeated what other judges have said in other cases, that courts “cannot fix every problem”, and there are risks in making orders for therapy. For example, a child might refuse to comply, a practitioner might decide that a child is capable of independent decision making such that he or she cannot override the child’s refusal, and attempts at therapeutic intervention might fail, rendering it impractical, costly or an exercise in futility. Forcing an unwilling child into therapy might also be harmful.

[40] At ¶ 11(g), Leach J. provided a helpful list of considerations to guide the exercise of discretion when deciding whether or not to order therapy, extracted from the case law. They entail a consideration of the cause of the family dysfunction, whether because of alienation, alignment or reasonable estrangement, whether there is expert evidence or other evidence available, whether there is compelling evidence that therapy would be beneficial to the child, the stage of the case at which the order for therapy is being sought (ie. at trial or on a motion), and the likelihood of the parents’ and the child’s voluntary participation in the therapy.

[41] In the result, on the facts of the particular case before Leach J., the Court did not order reunification therapy. But it is trite that cases in family law often turn on their facts. I will now consider the factors set out in Gee v. Gee, and this child’s best interests, in the context of this record before this Court at this time about this particular child.

B. Analysis

(1) The Cause of the Family Dysfunction

[42] Each parent blames the other. The record before me is not so cut and dry.

(i) There is Some Evidence that the Mother Has Involved the Child in the Parental Dispute and Exposed Him to “Adult Issues”

[43] The father is of the view that the mother has influenced the child. He says she has “parroted a lot of her allegations”, and the child in turn has made “extreme” and “inconsistent allegations” about abuse. The father alleges that this is a long- standing pattern of behaviour on the part of the mother. The father says that the mother has had inappropriate adult discussions with I.S.; he alleges she has involved I.S. in the parents’ disagreements, and he says she has even lied to I.S. about events that he says did not occur, in particular, the mother’s allegation that the father cheated on her (which he also denies).

[44] The father has also accused the mother of not facilitating his parenting time after the separation. He says that the mother has monitored and controlled the child’s cell phone. He says that the child told him that the mother would not let the child speak to him, see him, or have extended visits or overnights. He says that the child has reported to him that the mother constantly badmouths him, and that the mother will punish him if he disobeys her. The father is very concerned that I.S. has distanced himself from the “entire side of [his] family”. The father believes that the child is caught in a loyalty bind.

[45] By contrast, the mother disagrees that she does not facilitate the father’s parenting time. The mother says that that immediately after the separation, she tried to regularize the father’s parenting time with the child according to a schedule of alternating weekends. She says that the father refused to exercise parenting time on a regular schedule, citing his work commitments to explain his inability to do so.

[46] The mother also points out that she cannot communicate with the father as a result of a Peace Bond that is in place, and so she does not involve herself in scheduling parenting time. But she does not restrict the child’s communication. The mother points out that the father pays for a cell phone for the child, that I.S. uses to communicate with him.

[47] The father is critical of the mother for having recorded him. According to the father, the mother did this over a period of time, perhaps as much as a year of recording. He says she planted unauthorized recording devices in his truck and lunch bag. On one occasion, he was discussing massage parlours with his friends, and this he says “set [the mother] off”, causing her to send the discussion to approximately 150 people and claim that he was “using prostitutes”.

[48] While the mother has admitted to recording the father, she explains why she did this. The mother tells the Court that the father had been denying her belief that he was unfaithful. She says he called her “crazy and insane”. This is what led her to use a recording device, to verify that her suspicions were correct.

[49] The mother disagrees that she played the recording for the child. She says that the child overheard that the father was using sex workers during one of the parents’ argument about it. Notably, the mother also says that the child witnessed the assault against her (described below) that she says occurred when she confronted the father about the sex workers.

[50] In support of his arguments that the mother has interfered in his relationship, the father points to a number of collateral records from children’s aid societies that have been obtained and put before the Court for this motion. And in contradiction to the mother’s denial of having involved the child in the recordings, there is a case note of child protection worker Melanie Till dated March 10, 2023 before the Court, which reveals that the mother did in fact place a recorder in the child’s lunch bag to record the father. The child himself reported that he heard the father talking about a massage parlour with other men. The child referred to having confronted the father alongside his mother.

[51] The father points to other case notes to prove his other arguments about the mother’s influence. One other such case note is that of March 2, 2022. It was authored at a time when the father had not seen the child for three months. It reveals that the Society received a call from someone at the child’s school reporting that the child said that the father had been cheating on his mother, and that the father became angry and assaulted him and his mother over a period of time in December of 2021.

[52] The father argues that the child’s statements made on March 2, 2022 came almost three months after the separation. He says these statements were inconsistent with earlier reports that the child had made at the time of the separation, that he “forgot” to repeat on March 2, 2022. He also says that the child “remembered” more events at subsequent interviews by child welfare workers.

[53] For example, one of the earlier case notes containing statements to which the father refers as inconsistent, is that of child protection worker Mia Tusji dated December 21, 2021. It was generated three days after the separation as a result of the referral to the Durham Children’s Aid Society by the Durham Regional Police, pursuant to its duty to report the family violence that it was investigating. However, I note that it was the mother who called the police, not the child on that date. It was also the mother who initially disclosed the incident of serious family violence that had occurred in the presence of the child, not the child himself.

[54] In any event, according to this case note, the child confirmed that the father assaulted the mother. He said the violence included pulling the mother’s hair and slapping her face. The child reported that the mother began breaking things in the house in an attempt to get away from the father, and then she called the police. He had to intervene into the fight to protect his mother.

[55] Another, allegedly inconsistent case note in the father’s material, is that of child protection worker Stephanie Bruce dated December 29, 2021. This time, the child reported to Ms. Bruce three incidents of family violence, and some of those went back in time. According to these particular disclosures, the mother had accused the father of cheating on her, and the father responded with physical violence. The child’s more historical reports included his recollection of the father having strangled the mother, and having hit the mother in the head, causing stiches.

[56] The child reported that the father is more violent and aggressive when drinking. The child said that he had been hit by his father when trying to intervene to protect his mother. He described the father’s actions towards him as both deliberate at times, and unintentional at other times.

[57] But the father neglected to mention the entire contents of the March 2, 2022 case note when discussing it in his affidavit. There is other evidence before the Court that the mother came home to find the father berating the child. The father did not deny this. The father had told the child that he was going to attend at the child’s school. The father did in fact attend at the child’s school and tried to take him out of school. There is evidence before the Court that at some point soon after the separation, the father admonished the child for having made a statement to the police about the assault, too.

[58] And more generally, the strength or weakness of the father’s argument, that the child has been overly influenced by the mother such that he has made inconsistent statements and elaborated allegations of abuse over time, is very heavily tied to his narrative that no family violence occurred. For the reasons set out below, that is not a conclusion I am able to reach on this motion.

[59] In summary, looking at this conflicting evidence as a whole, alongside the objective, collateral records before the Court to which the parties each referred to argue for or against their versions of events, I do find there is some evidence of the mother involving the child in the parental dispute in a problematic way, although not necessarily to the full extent characterized by the father. But that is also not the full extent of the evidence about the cause of the family dysfunction before the Court.

(ii) Family Violence

[60] The father unequivocally denies that he was ever physically abusive towards the mother or the child. According to the father, he has been charged seven times for what he describes as “alleged assaults”. He said that each time the charges were withdrawn. He argues that the mother made up these allegations to get him out of the house, to punish him, and to use tactically to gain some kind of advantage in court. He even says that it was the mother who has been physically violent towards him.

[61] Yet these blanket denials stand in contrast to the mother’s multiple accounts of years of family violence that she says she experienced, and the findings or conclusions of at least one child protection worker and a previous OCL clinician involved with this family.

[62] According to the mother, the pattern of family violence occurred throughout the marriage. It began before the child was born. The father was arrested and charged in 2005 and 2007. The mother did not go to Court due to pressure from the father’s family.

[63] The mother says that the family violence continued, and it continued in such a fashion that I.S. was exposed to it from an early age, after his birth. Another example that she gives is that on May 6, 2008, the father attacked her, threw her up against a wall, and slapped her on the shoulder and the back of the head. The father also threatened her with a meat cleaver while the child played in front of her on the floor. I.S. was just four months’ old at the time.

[64] This time, the father was charged with assault, assault with a weapon and threatening death. The Toronto Police reported this incident to the Toronto Children’s Aid Society pursuant to its duty to report.

[65] The York Children’s Aid Society became involved with the family, apparently when the child was four years old. The mother says that on this occasion, she left the home with the child. The mother says that father attended at her parents’ home and slashed her tires. The mother says that the father was charged once again.

[66] According to a case note from the York Children’s Aid Society, the father was charged with mischief following this incident. But like the way that a more recent set of criminal charges from December of 2021 concluded, the mischief charge resolved by way of a Peace Bond back then.

[67] The records of the York Children’s Aid Society before the Court go on to detail other incidents, and further charges against the father, both for uttering a death threat, and for not complying with the Peace Bond. The mother says these further charges occurred after she commenced the first proceeding in 2011.

[68] Notably, the York Children’s Aid Society verified, based on the parents’ reports, that the child had witnessed incidents of domestic violence. This stands in contrast to the father’s outright denials.

[69] Likewise, in that past proceeding that commenced in 2011, the OCL was appointed. Already back then, the father was accusing the mother of having made false criminal allegations against him. Yet in her report at the time, the OCL clinician and author of the section 112 report found that the father had in fact been physically violent towards the mother. The clinician also discussed concerns about his alcohol use.

[70] Notably, one of the collaterals to whom the clinician had spoken was the mother’s family doctor. That doctor observed an occasion where the mother came to a medical appointment with significant bruising on her body.

[71] As early as 2012, the child himself reported that his father had hit his mother. This was years before the alleged alienation that the father says since occurred.

[72] The prior OCL report recommended that the mother needed counselling to address the family violence and issues respecting her choice of partners. The clinician recommended that the father only have supervised access, that he access anger management and that he address his alcohol use. The clinician also noted that the child was starting to have behavioural issues at school, including himself engaging in physical violence towards other children. The OCL report recommended some counselling for the child, which he then received in 2013.

[73] As set out above, there was another reconciliation after the prior proceedings came to an end by way of the parties’ separation agreement. The mother alleges that the cause of the parties’ ultimate separation in December of 2021 was yet another assault. This is already discussed above with reference to the CAS case notes and the mother’s recordings. The mother says that this assault occurred after she confronted him with the recording about the use of sex workers.

[74] There was one further criminal matter after this about which the father complains. The father was charged again in or around December of 2022. He says that the mother made a false allegation that he had sent a package to her in violation of his release conditions under one of the previous charges. The father denies that he sent the package and believes that the mother sent the package to herself to create grounds for a new charge. The father says that these charges too, were withdrawn.

[75] But the mother also denies that she sent the package to herself. To the contrary, the mother says that in late December, the child retrieved a package in the mail and when he opened it, it contained three pages of threats written in the Tamil Language and a picture of a Hindu god. I.S. was upset after he received this package; he stopped seeing his father for a time.

(2) Conclusions About the Cause of the Family Dysfunction

[76] In my view, the child’s own evidence, particularly that which came through Ms. Guthrie-Douse (below), offers the best perspective about how the Court should treat this evidence about the cause(s) of the family dysfunction. In short, both parents are responsible for it.

[77] On the one hand, there were clearly reports, including from the child himself, that he had been over exposed to and involved in the parental conflict, including about the father’s alleged affairs. Ms. Till of the Society verified the child’s exposure to this conflict. I am also concerned about the mother’s recording of the father, and the child’s involvement in that.

[78] But on the other hand, just because the father has denied it, just because the mother in the past failed to attend court in certain criminal cases, just because some of the criminal matters resolved by way of a Peace Bond, just because the parties reconciled, and even notwithstanding that Ms. Till said it was “difficult to ascertain the truth” about the family violence in her case note of March 3, 2022, and in her investigation summary of March 23, 2022; these things do not mean that the family violence did not occur: see also Barendgret v. Grebliunas, 2022 SCC 22 ¶ 186.

[79] Whether or not any one of these particular allegations of violence happened or not, or whether or not it was the father or the mother (or someone else) who sent the package in late December of 2022, is not really the issue that now confronts the Court. I do not need to make individual findings about any of these particular allegations. There is a common theme across a number of the child’s various reports, of physical violence by the father towards the mother, in the presence of the child, with the child sometimes intervening to protect his mother. And it is not just the child (and the mother) who are saying this, although their evidence is entitled to respect. As I have already indicated, family violence was previously verified by the York Children’s Aid Society, and the previous OCL clinician flagged it as a problem.

[80] Both the mother, and most importantly the child, were served with a summons to witness to testify in the criminal trial against the father relating to the December 2021 assault. Fortunately, the child did not have to testify against his father, when the criminal trial resolved by way of a Peace Bond. But the evidence before the Court, that the father had previously admonished this child for having made a statement to the police in the first place, is equally concerning. Clearly, that cannot have helped his relationship.

[81] In assessing the evidence of family violence now before the Court, I also note that on April 19, 2023, the parties entered into a consent order requiring them to sign joint directions for the release of police disclosure. The father chose not to file any of the police disclosure that he received. Rather, at ¶ 70 of his affidavit, the father just writes “I do not intend to go through the criminal disclosure in this affidavit but mention that the stories kept changing and were inconsistent. However, what my criminal lawyer [unnamed] and I also found was that [I.S.’] story would change the same time as [the mother’s]. I confirm none of these allegations happened.” What exactly does the father expect the Court to make of a statement of this nature, when he chooses not to go through the evidence but to issue another general statement and a blanket denial? How exactly does he expect the Court to consider whether the stories did in fact keep changing, or whether the inconsistencies, if any, were material or of lesser significance?

[82] Looking at this evidence as a whole, the father’s blanket denials that any family violence ever occurred are hard to accept. While the mother is not herself blameless for her inappropriate involvement of the child into the parental disputes, I am concerned that this father is minimizing the impact of his actions in the family, and that he does not understand that his child likely experienced trauma.

(3) The Child’s Views and Preferences

[83] What is particularly notable to the Court, is that unlike in some of the other cases that counsel cited, the child in this case before me is not actually refusing to see his father. While in her affidavit of June 29, 2023 Ms. Guthrie-Douse does state that I.S. had limited contact with his father between December of 2021 and December 28, 2022, and that in-person contact stopped altogether between the end of 2022 and April 29, 2023, contact has since resumed.

[84] According to Ms. Guthrie-Douse, I.S. has resumed having contact with his father, when he initiates it. She has also confirmed with the child, that he has communication with his father over the telephone.

[85] In fact, I.S. reported to Ms. Guthrie-Douse that he has been seeing his father every other week since April 29, 2023. And Ms. Guthrie-Douse is of the view that the child’s contact is even a bit more frequent based on her review of the information she received. For example, she has said that I.S. has seen his father twice in some weeks. He has also spent time with his father during the mid-week this past summer. Fortunately Ms. Guthrie-Douse is of the view, that the child’s contact with the father is child-focused, when it occurs.

[86] Furthermore, I.S. told Ms. Guthrie-Douse that he is prepared to continue to see his father on weekends as arranged between them going forward, but he wants to maintain some discretion over this. He does not want a defined schedule.

[87] The father’s evidence aligns with Ms. Guthrie-Douse’s to some degree. Although the father’s evidence about the amount of contact he has does not fully align, he says that when he and the child are together, “everything is fine”. He then alleges that the mother makes things difficult when the child returns back home.

[88] What the father does not seem to recognize when he makes complaints of this nature, is that they impact his relationship with his son. I.S. told Ms. Guthrie-Douse that when he chooses not to see the father for some reason or another, and when the father responds by blaming the mother, this upsets him. I.S. feels that he can make his own decisions, independently of his mother.

[89] Finally, in regards to counselling specifically, Ms. Guthrie-Douse says that the child has been clear and consistent. He does not want to attend counselling in any form, including one-on-one therapy, group therapy, or reunification therapy. He said he would refuse to attend if ordered.

C. Conclusions Respecting the Father’s Motion for Reunification Therapy

[90] In conclusion, the father’s motion for an order for reunification therapy is dismissed because:

(a) Both parents are responsible for the family dysfunction. The mother has engaged in inappropriate behaviours that involved the child. But on a balance of probabilities on the record before me at this interim stage of the case, I do not accept the father’s blanket denial of family violence;

(b) The therapy ordered in A.M. v. C.H. was part of a broader intervention to remedy parental alienation. This was done following a trial, after which the Court found that the mother had “systematically and successfully poisoned the child’s relationship with his father.” Notably, the trial judge’s factual findings were not disturbed on appeal. The Court in that case also heard evidence from a therapist who had tried to work with the father and son already, without success: see ¶1, 18. These are not findings I would, or could make on this motion;

(c) This case before me is at the motions stage. I am not saying that therapy cannot be ordered on a motion, but I would not do so in this case;

(d) The child is not actually alienated from his father. This is not a case where the child is not seeing his father. To the contrary, the child himself has made efforts to see his father again, since the end of April, although perhaps not as often or on the exact terms that the father would like. He just wants to maintain some discretion over his visits with him;

(e) I find I.S.’ statements to Ms. Guthrie-Douse, that his parents have been separating and reconciling throughout his life, that he is “fed up” with their dynamic, and that he does not want to continue in it, to be compelling. The child is angry that the counselling issue is persisting in this litigation. He feels that he has communicated his position clearly on several occasions. He feels that he has done work on his own to repair his relationship with the father, and if he is forced to attend counselling, he will be angry;

(f) I agree with Ms. Guthrie-Douse, that this child has already had lengthy involvement with third-party professionals, including the prior clinician who prepared the OCL report, referred to above, various child protection workers, police officers, and others in the criminal justice system;

(g) Although there have been more incidents since 2013, I do observe that the child already had counselling back then. Nonetheless, the Court does worry that the child did not get counselling in 2022, when the Society last recommended it and closed its file. That said, I am not in a position to comment about the sufficiency of the counselling from 2013, not knowing more about it. And I have to consider the desirability of ordering therapy now in context of all of the evidence, not just the recommendations of the Society from 2022;

(h) Fortunately, there is some evidence of this child’s strength and resilience despite the family history. For example, it is positive that I.S. is doing very well in school and he wants to become a doctor. Ms. Guthrie-Douse notes that he earned an 85% average on his spring semester subjects, and she observed him to be motivated to do well academically and to proceed to post-secondary education. I.S. also wants to do volunteer work in excess of the 40 hours required for graduation, to bolster his post-secondary school applications;

(i) It appears to the Court that rather than wanting to focus on therapy, I.S. is choosing to focus on his academics, yet even then he is not doing that to the complete exclusion of his father. He is willing to see his father. The parents, and the father in particular, should not lose sight of their son’s wishes and his academic successes to date. They should not do anything to destabilize that;

(j) The evidence is strong and compelling, that the child will not voluntarily participate in reunification therapy; and

(k) I accept Ms. Guthrie-Douse’s clinical opinion, that forcing this child to go to counselling against his wishes is more likely to have a negative impact on his evolving relationship with the father rather than a positive one.

[91] I offer the following two additional observations to the parents. This child may very well at some point benefit from some form of therapy, perhaps individual counselling, to address the trauma that he has experienced as a result of his parents’ relationship and separation. The father’s initial refusal to agree to counselling when the mother first proposed it in March of 2022, was unfortunate. It is equally unfortunate that the parents did not put something in place after that in the months that followed; perhaps the child might have attended. But this Court cannot unravel the parents’ positions during these periods, and this Court cannot change the past.

[92] I ask the parents going forward to seriously consider allowing I.S. the space to focus on his academic goals, without pressuring him, while also allowing him the freedom to see his father. If this child comes forward and indicates a desire to see a therapist (or if he tells this to his lawyer), then the parents should immediately put that into place, and not get into another dispute about its necessity, the goals of therapy, who will provide it, or the form that it will take. The child can decide that in consultation with his therapist.

[93] It also seems to me that these parents might themselves benefit from some form of individual counselling. The prior OCL report recommended that mother obtain this. The mother might learn how to parent differently given the evidence of her inappropriate conduct. In regards to the father, I am not satisfied that he has dealt with his own conduct in the relationship and in the separations, that he has taken the appropriate degree of responsibility, or that he has a good understanding about the impact of his behaviour on the child. Rather, he is denying responsibility.

[94] But this motion was not about counselling for the parents. Perhaps it should have been.

[95] The parties may wish to speak to their own counsel about this, and decide what they will do moving forward.

D. Life Insurance

[96] The Final Order of April 20, 2023 for child support was made under the Divorce Act. There is jurisdiction to order a parent to maintain life insurance to secure a child support obligation under the Divorce Act, and pursuant to section 12 of the Federal Child Support Guidelines: see Katz v. Katz, 2014 ONCA 606 ¶ 66 to 71.

[97] The father specifically relies on the Ontario Court of Appeal’s articulation of what courts should consider when ordering life insurance to secure support at ¶ 74 of Katz v. Katz. One comment of the Court of Appeal, was that in cases where there is no life insurance police in place, courts should proceed carefully. But in this case before me, the father has life insurance in place, with a face value of $300,000.00. The child is the beneficiary. The father’s brother is the trustee. The dispute before this Court is how much he needs to maintain to secure the child support, and on what terms.

[98] The Ontario Court of Appeal provided additional guidance about other life insurance terms in ¶74 of Katz v. Katz. For example, the Court of Appeal wrote that careful consideration should be given to the amount of insurance that is appropriate, which should not exceed the total amount of support likely to be payable over the duration of the support award. The Court of Appeal determined that the amount should be somewhat less where the recipient will be able to invest the proceeds. The Court of Appeal determined that the amount of insurance should decline as the total amount of support payable diminishes over time. The obligation to maintain insurance should end when the obligation to maintain support ends.

[99] And while section 34(4) of the Family Law Act provides that an order for support binds the estate of the person having the support obligation unless the Order provides otherwise, there is no such provision in the Divorce Act, although it can still be ordered. As such, where life insurance is sought to secure a child support Order made under the Divorce Act, the Court should first order that the support obligation is binding on the payor’s estate.

[100] The father is not opposed to naming the mother, provided that he only has to do so to the extent of what he will owe her if he passes away. He wishes to leave the rest of the insurance to the child as is currently in place. It seems he also wants to maintain his brother as trustee.

[101] The father’s life insurance calculation is premised on his current child support obligation continuing for a further two years until the child finishes high school, plus a further four years for an undergraduate degree. He says he has added another $11,500.00 into the calculation for “miscellaneous”. He wishes to reduce his obligation to maintain life insurance by $6,600.00 per year, being his annual child support obligation ($550.00 per month x 12).

[102] In regards to securing the cost of I.S.’ post-secondary education (which has not yet been quantified) the father says that the parents earn close to the same amount of income. They have already agreed to share section 7 expenses equally. The father says that he has a RESP with $12,379.61 in it, to which he solely contributes. He says that the projected value on maturity is $18,061.47. He also says that the child will have to take out loans and apply for bursaries to fund his post-secondary education.

[103] The father does not agree that he should have to fund and therefore secure the cost of medical school with life insurance. He says that this was not the expectation during the marriage, and his earnings are insufficient to cover medical school.

[104] Based on all of these arguments, the life insurance he proposes of $50,000.00 is much reduced from the mother’s calculations.

[105] The mother disagrees to with the father’s approach and calculations, including about the obligation to fund and therefore secure medical school. For example, she says that she and the father supported the child’s goal to go to medical school. The mother says that the plan before the separation, was that I.S. would earn two degrees. They funded additional tutoring to help him have strong grades in school. As such, she seeks sufficient life insurance to secure not only child support, but all of the father’s share of the anticipated costs of two degrees.

[106] The mother has provided an estimate of those costs based on current tuition rates and other estimated school and living expenses. She has provided some information that undergraduate tuition at the University of Toronto will cost about $6,790.00 per year, not including books and incidental costs. This is premised on the child living at home with her. But if he goes away to attend school, the costs will be higher; she estimates between $23,500.00 and $34,300.00 per year. The mother has also provided estimates of the cost of medical school at McMaster University. They are said to be about $185,500.00 for the program.

[107] The mother disagrees that the father should get credit for 100% of the RESP in the analysis. While the father may very well be contributing towards it post-separation, I gather the mother intends to take the position that some of the RESP should be applied to defray her pro rata share of the post-secondary expenses. Unfortunately, the parties did not address how the RESP will be used in the Final Order of April 20, 2023.

[108] In the result, the mother proposes that the father maintain life insurance of $225,000.00. She arrived at this figure by roughly calculating child support for another 7 years, and 50% of the undergraduate and medical school amounts, as if the child were living away for school.

[109] This Court cannot calculate the amount of life insurance required with precision. On the one hand, the Court does query whether the mother’s calculations contain a bit of a double count. She seems to have included another 7 years of child support and half of the cost of both post-secondary degrees in her calculations, premised on the child living away for school for both degrees. The Court queries whether she would be entitled to the full amount of table child support, if the child is living away for school and the parents are otherwise sharing the child’s broader university budget, beyond just tuition: see section 3(2)(b) of the Federal Child Support Guidelines.

[110] On the other hand, even if the child remains at home, the mother has underestimated the cost of I.S.’ undergraduate program, since that will involve more than just tuition only.

[111] And on the other hand further, this Court cannot rule on this question about medical school at this stage. How or why should this Court decide now, on this record, when this child is still in grade 11, whether the child will go to medical school, whether these parents have to contribute towards that, and related questions about I.S.’ dependency if he goes to medical school?

[112] This is going to have to be dealt with in due course in a Motion to Change when the time comes, if the parents’ cannot agree. So while I would not rule at this point that there is an obligation to pay and thus secure, I am equally not prepared to say that there is not one either. I prefer to approach the issue cautiously, to ensure that there is enough in place to cover all of these eventualities. And given that the father has more life insurance than he needs, and given that he intends to leave the balance of any unneeded insurance to the child in any event, it makes sense to secure all of these prospects right now. This can be reviewed in due course.

[113] On a rough basis, calculating child support at $550.00 per month for two more years, 50% of the cost of a four-year undergraduate degree and related expenses of $15,000.00 per year for a total of $60,000.00 (ie. assuming 50% of annual expenses of about $30,000.00 x 4), and 50% of the cost of medical school of $92,750 (ie. 50% of $185,500), I find that the father requires life insurance of about $165,950.00.

[114] I have not deducted from these calculations any amounts for OSAP or bursaries, nor have I apportioned the RESP in any particular way, such as entirely in the father’s favour. I have also not discounted my calculations for the prospect of the mother investing any life insurance received. This was not argued, calculations were not put before me, and in any event, it is likely that university expenses will start to be incurred in the near future, within 2 years. On the other hand, while my failure to have done so might inflate the amount of life insurance needed somewhat, I have also not factored into this calculation any summer child support were the child living away from home, to which the mother might be entitled.

[115] I have attempted to strike the right balance. But again, these issues will have to be dealt with when the time comes if the parties cannot agree. Life insurance may be reviewed at the same time. I make provision for that below.

[116] Finally, during submissions, the mother’s counsel agreed to the annual reduction of life insurance in the amount of $6,600.00 sought by the father. As such, that will form part of the Order without the need for any further analysis.

Part V: Orders

[117] I make the following Orders:

(a) The father’s motion for reunification therapy is dismissed;

(b) The Final Order of April 20, 2023 for child support is binding on the father’s estate;

(c) The father shall maintain a life insurance policy in the amount of $165,950.00 to secure his child support obligation, which includes his share of any future section 7 expenses. The father shall irrevocably designate the mother as the beneficiary of the policy in trust for the child;

(d) The father may do as he sees fit with the balance of his life insurance;

(e) Within 14 days, the father shall provide the mother with documentation confirming that he has made the necessary changes to this life insurance to comply with this Order;

(f) Within 14 days, the father shall also sign a direction authorizing the life insurance company to release information to the mother from time to time at her request, so she can verify that the life insurance required by this Order remains in place on an ongoing basis after the date of this Order;

(g) Commencing January 1, 2025 and on January 1 thereafter, the father may reduce the amount of life insurance that he must maintain by $6,600.00 per annum;

(h) Either party may seek to review life insurance in the year that the child is scheduled to commence a program of post-secondary education, and again in the year that he is scheduled to complete his first degree, to determine whether the life insurance terms that I have ordered remain appropriate having regard to the child’s educational status, his residential arrangements and his other resources, like loans and bursaries; and

(i) I encourage the parties to settle costs of this motion. If they cannot, the mother may file costs submissions, limited to 3 pages plus a Bill of Costs and any references to case law, by October 10, 2023. The father file may his costs submission by November 10, 2023 subject to the same restrictions on length plus attachments.

[118] There is no next step set in this case. This case needs to end for the sake of I.S. I am scheduling a combined Settlement Conference and Trial Management Conference to proceed before me on February 22, 2023 @ 2 PM - in person. If either counsel or the parties are not available, please coordinate a reasonable adjournment that is close in time to that date, through the Trial Coordinator’s Office. The parties are to file Settlement Conference Briefs with Offers to Settle the remaining issues. The parties shall also jointly file a Trial Scheduling Endorsement Form in draft for that appearance.

[119] I thank counsel for the parents and the OCL for their assistance with this matter, in particular for their facta and for their written and oral submissions.

Justice Alex Finlayson

Released: September 13, 2023