Court File and Parties
Court File No.: FS-17-415079 Date: 2023-10-30 Ontario Superior Court of Justice
Between:
MARIA DA TORRE Applicant – and – DANNI GROSSI Respondent
Counsel: J. Grossman, for the Applicant A. Fullerton, for the Respondent
Heard: June 29, 2023
Before: Vella J.
Reasons for Decision
[1] On March 13, 2023, at the trial management conference, Justice Kristjanson granted leave to the Respondent Father, Mr. Grossi, to bring a motion to vary the interim parenting Order of Justice Moore dated September 17, 2022, in light of the fact that the trial was then one year away. The trial is scheduled to commence on January 29, 2024.
[2] At the motion, counsel for Mr. Grossi advised that in light of recent developments (namely that the Child has indicated she no longer wishes to see her father), the main relief being sought is an order directing the parties to engage in reunification therapy. He is no longer pursuing a change to the interim parenting order (without prejudice to renewing the latter motion in the future).
[3] Mr. Grossi’s counsel did not apprise the Applicant Mother’s, Ms. Da Torre’s, counsel of this change until the court was apprised.
[4] This sudden change in position took Ms. Da Torre off guard. Her factum concentrated on the test for a motion to change. Nonetheless, Ms. Da Torre did not seek an adjournment.
Preliminary Matters
[5] Two preliminary matters were also raised.
[6] First, Mr. Grossi sought leave to file an affidavit of Dr. Alexandra Soliman sworn June 27, 2023. Dr. Soliman is a registered psychologist who performed a clinical assessment of the Father on March 18, 2015. A one-page report reflecting Dr. Soliman’s clinical opinion regarding Mr. Grossi’s mental health diagnostic assessment dated August 13, 2020 and reflecting the March 18, 2015 assessment was attached.
[7] The Father submitted that the importance of this expert evidence is to show that he satisfied one of the conditions imposed on his ability to bring a motion to change the parenting arrangement.
[8] The Mother objected. The serving of this expert report on the eve of the motion did not permit her to file a responding expert report or cross examine.
[9] In my view, given the change in the direction of this motion, the expert report reflecting a 2015 mental health assessment of the Father is not relevant to whether or not reunification therapy is warranted. The report does not deal with the issue of parental alienation or any other issue relevant to the court’s assessment.
[10] Accordingly, I denied leave to file this affidavit at the motion. The Father did not wish an adjournment in light of my ruling.
[11] Second, the Father objected to the late filing of affidavits by the Mother of Annette Grossi and Maria Grossi sworn June 19 and 20, 2023 respectively, unless he is granted leave to file his further affidavit sworn June 27, 2023, in reply to these affidavits. The affidavits were served on his counsel two days before this motion. The Father did not receive these affidavits until after he delivered his reply to affidavit.
[12] Annette Grossi is the father’s sister and aunt to the Child, while Maria Grossi is the Father’s mother and paternal grandmother to the Child.
[13] The Mother objects to the late filing of the Father’s June 27th, 2023 affidavit.
[14] In my view, given the nature of this motion, it is important that I receive all relevant affidavit evidence insofar as they deal with the best interests of the Child and the claim for a therapeutic order. Furthermore, if I allow the Mother’s late served affidavits, basic fairness requires that the Father’s reply affidavit be admitted. Accordingly, I have admitted all three affidavits into evidence.
[15] Finally, given the pending trial date, and the value in obtaining an updated view of the perspective and wishes of the Child [1], who apparently now resists spending time with the Father, I issued an interim ruling on July 6, 2023, directing a Voice of the Child report to be prepared by the Office of the Children’s Lawyer so that it will be available for trial.
Juridical Background and Pattern of Supervised Parenting Visits by Mr. Grossi with the Child
[16] Ms. Da Torre and Mr. Grossi were married on December 31, 2008. The Child was born in June 2011. In February 2015, the parties separated. Mr. Grossi moved out and Ms. Da Torre was and is the primary caregiver for the Child.
[17] On December 13, 2017, Justice Paisley made a Final Order in which Ms. Da Torre was given sole decision-making authority and Mr. Grossi was allowed to inquire and receive information about the Child’s education and health. Each party was responsible for day-to-day decisions when they had care of the Child.
[18] On May 2, 2019, Justice Stevenson made a Temporary order giving Mr. Grossi parenting time every Sunday from 10 a.m. to 7 p.m., to be supervised by his mother, Maria Grossi, or Brayden Supervision Services.
[19] On May 30, 2019, Justice Sanfilippo made a Temporary Order. With respect to parenting time, Mr. Grossi was to have every Sunday from 10 a.m. to 7 p.m. with the child supervised by Brayden and could attend at her soccer games so long as he sat on the opposite side of the bleachers from Ms. Da Torre. Mr. Grossi was ordered to complete a parenting capacity assessment and a mental health assessment by a psychiatrist, given concerns expressed by Ms. Da Torre about his alleged volatility, aggression and violence.
[20] From June 16, 2019 to August 18, 2019, Mr. Grossi had 9 parenting visits supervised by Brayden, which was once a week, in accordance with the Sanfilippo J. Order.
[21] However, from August 19, 2019 for over one year to May 2020, Mr. Grossi exercised no parenting time with the child.
[22] In or around August 2019, Mr. Grossi retained Dr. Raymond Morris who started the parenting capacity assessment of him.
[23] On June 5, 2020, Justice Boucher made a Final Order that neither party would attend the street or home where the other party resided without written consent. Mr. Grossi was prohibited from attending the street or home where the maternal grandparents resided or be near Ms. Da Torre’s school where she works as a teacher. The only direct communication between the parents was to be with respect to the Child.
[24] On September 17, 2020, Justice J.P. Moore made a Temporary Order. Mr. Grossi was granted parenting time with the Child to occur on each Sunday from 4:00 p.m. to 7:00 p.m., again supervised by Brayden. While Mr. Grossi exercised his parenting time on October 11, 2020, he did not exercise any further parenting time for over one year until December 19, 2021.
[25] On February 18, 2022, Justice O’Brien requested the involvement of the Office of the Children’s Lawyer. The OCL agreed to conduct an investigation under section 112 of the Courts of Justice Act on April 11, 2022, which was carried out, resulting in a report dated September 1, 2022.
[26] Mr. Grossi left Ontario to work in British Columbia for a period of time. He returned to Toronto in mid May 2022. He had a supervised parenting visit with the child on June 26, 2022.
[27] There have been no visits between Mr. Grossi and the Child since Justice Kristjanson’s Order made March 13, 2023.
Issues and Analysis
[28] Prior to the trial management conference before Justice Kristjanson, Mr. Grossi had some supervised visits with the Child. The supervision was provided by Brayden Supervision Services. However, just prior to the trial management conference held before Justice Kristjanson, the Father was advised that the Child no longer wanted to see him.
[29] The Father believes that the Mother has poisoned his relationship with the Child and thus has proactively alienated the Child from him. He believes the only possible remedy is reunification therapy and that, as time is of the essence, it must occur as soon as possible. The Father states that the Mother has thwarted the parenting assessment by discouraging the Child from participating, stating that the parenting assessor could not be trusted since Dr. Morris was paid for by the Father, and by giving her a safe word if she did not want to stay, which the Child used.
[30] Mr. Grossi has not seen the Child since January 2023. The Child is 12 years old.
[31] Ms. Da Torre denies any such alienation on her part and submits that this issue should be left to trial, which is now only about two months away.
[32] There are two central issues raised for determination:
(a) Has there been parental alienation of the Child by the Mother? (b) Is reunification therapy in the best interests of the Child?
The Juridical History as Related to the Parenting Schedule
[33] On May 30, 2019, Justice Sanfilippo ordered that the Father attend at a mental health assessment with a psychiatrist, which he did. Dr. Azadian’s assessment did not reveal any mental health concerns, though the thoroughness of it is appropriately questioned by Ms. Da Torre.
[34] Justice Sanfilippo also ordered that Mr. Grossi would have supervised visits with the Child. In response Mr. Grossi retained Brayden Supervision Services and attended 10 sessions over 8 weeks of supervised visits. No concerns were revealed by Brayden in relation to these visits. Indeed, the notes from Brayden reveal that the visits were positive. However, Mr. Grossi deposed that the cost of the supervision prohibitive. Hence, he determined that he would spend his money on the assessments and be content with seeing the Child at her weekly soccer practices and games, also permitted pursuant to the Order of Sanfilippo J., pending obtaining unsupervised visits with her.
[35] The Father retained a registered psychologist, Dr. Raymond Morris, to conduct a parenting capacity assessment in August 2019, again pursuant to the Order of Sanfilippo J. The parenting assessment was never completed as the Child refused to stay beyond a few minutes for the child/parent observation session and her individual session with Dr. Morris. Mr. Grossi blames Ms. Da Torre for the Child’s refusal to stay in the two sessions for the requisite length of time.
[36] During COVID-19, the Father had twice weekly Zoom visits with the Child. Both parties agree that these visits went well overall.
[37] Starting in or around September 2022, pursuant to the temporary Order of Justice Moore dated September 17, 2022, made on consent, the Father was granted supervised parenting time every Sunday from 4:00 p.m. to 7:00 p.m. under the supervision of Brayden. A note from Brayden reflecting the October 11, 2020 visit shows that the visit was a positive one.
[38] As stated, Mr. Grossi says that due to financial constraints, he ultimately decided to spend his discretionary income on completion of the parenting assessment, rather than on visits supervised by Brayden.
The Test for Ordering Reunification Therapy
[39] Much of the caselaw relied upon by Mr. Grossi dealt with the burden on the parent seeking to impose supervision over the other parent’s access to the children, and the test for such an order. However, the court has already made this order, and Mr. Grossi advised at the motion that he is not seeking to change the order at this point in time.
[40] The test for determining whether a therapeutic order, such as reunification therapy, is appropriate is whether such an order would be in the best interests of the child. Within this analysis, there are other specific factors that inform the best interests test within the context of a therapeutic order as will be discussed below.
[41] Mr. Grossi relies on A.M. v. C.H., 2019 ONCA 764. At paras 48 - 54 of A.M., the court affirmed the jurisdiction of this court to make therapeutic orders such as an order requiring the parties and child to participate in reunification therapy, based on subsections 16(1) and (6) of the Divorce Act and sections 28(1) (b), and (c) of the Children’s Law Reform Act with the support of section 17(8)(b) of the Family Law Rules. See also Audet J.’s detailed analysis in Leelaratna v. Leelaratna, 2018 ONSC 5983, accepted in A.M., at paras 40-52, outlining this court’s jurisdiction to make, and the rationale underlying, therapeutic orders that are in the best interests of the child.
[42] The Ontario Court of Appeal in A.M. upheld the trial judge’s imposition of a reverse custody and no contact order in favour of the father, given the extreme findings of fact made against the mother based on an analysis of the best interests of the child. The trial judge had found that the mother and child were unwilling to participate in reconciliation therapy due to the mother’s persistent pattern of alienation.
[43] It should be noted that in A.M., the Court of Appeal was hearing an appeal from a trial decision, not a motion, and found that the trial judge had not made a palpable and overriding error.
[44] In my view, the evidence adduced for this motion falls short of the facts established in A.M..
[45] Neither Mr. Grossi nor Ms. Da Torre raised the issue of the Health Care Consent Act in this motion. In any event, I agree with Justice Audet’s observations at para. 66 of Leelaratna that “most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA”. This observation was also cited favourably by the Court of Appeal in A.M..
[46] At para. 69 of Leelaratna, Audet J. listed the factors that are generally relevant to a consideration as to whether a therapeutic order, such as the request for reunification therapy, is in the best interests of the child:
a) Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clearly 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?
The Evidence
Ms. Da Torre
[47] Ms. Da Torre is an elementary school teacher and chairperson of her school. She has been a teacher for 17 years.
[48] Ms. Da Torre deposed that she left Mr. Grossi in the wake of physical, emotional, psychological and financial abuse. She deposed that his gambling and drug addiction made him violent, volatile and unpredictable. She encouraged him to attend workshops offered by Family Services Toronto to assist with working through the separation.
[49] She has kept track of the parenting visits by Mr. Grossi. She noted that Mr. Grossi had 10 visits in 2019, 1 visit in 2020, 2 visits in 2021 including the one at Dr. Morris’ office (for the incomplete parenting assessment), 2 visits in 2022 and 1 visit in 2023, and that this is a total of 16 visits over a three-year period out of a possible (authorized) 150 visits.
[50] It is her evidence that following Mr. Grossi’s arrest on March 26, 2023, for breaching of his recognizance, directly following a scheduled visit with the child, the child has been “further traumatized and does not feel safe to attend a visit”.
[51] Ms. Da Torre has described what she characterized as the traumatic effects of Mr. Grossi on the Child including nightmares. Her affidavit provides detailed descriptions of incidents involving Mr. Grossi and the Child that she characterized as having an adverse effect on the Child. She attached as exhibits copies of emails sent by Mr. Grossi to the Child at various times ranging from 6:00 p.m. to 2:00 a.m. which are emotionally charged and appear on their surface to be inappropriate.
[52] She also provided details about Mr. Grossi’s alleged aggressive behaviour towards her that she states the Child has witnessed. She points to the fact that there is a no-contact order which expired in July 2023.
[53] Ms. Da Torre also detailed Mr. Grossi’s past drug conviction in 1998 which involved time in prison.
[54] She deposed that she is fearful of Mr. Grossi due to his erratic and violent behaviour and fears for the safety and well being of the Child. However, she continues to be supportive of Mr. Grossi having supervised parenting access with the Child provided appropriate safeguards are in place and subject to the Child’s own feelings of safety. She maintains that the Child’s wishes should also be taken into consideration.
Zahra Kara
[55] Zahra Kara is a child and family therapist. She was retained by Ms. Da Torre to provide counselling to the Child. The Child has been in therapy with Ms. Kara since September 28, 2021. Ms. Zara continues to work with the Child to develop healthy coping strategies and provide guidance on processing emotions and life experiences. She swore an affidavit for this motion on June 7, 2023.
[56] Ms. Kara’s clinical impression is that the Child feels unsafe due to her father and his behaviours. The Child has told her that she will only see her father if it is supervised, as the Child believes that the supervisor causes her father to behave properly. The Child has disclosed to her what the Child considers inappropriate behaviour such as the sharing of secrets to be withheld from her mother, physical contact that she does not wish, and the taking of photographs of her which made her feel uncomfortable. Some of the incidents that Ms. Kara was told by the Child that made her feel vulnerable, unsafe and/or misunderstood were encouraging her to hide money from her mother, placing his hand on her lower back, and when her father stole her communion money. The Child also told her that she felt it was not a coincidence that her father only sought visits when there were upcoming court dates.
[57] Ms. Kara noted that Mr. Grossi had not exercised parenting visitation rights with the Child in any consistent manner.
[58] It is Ms. Kara’s opinion that future parenting visits by Mr. Grossi should remain supervised. [2]
Maria Grossi and Annette Grossi
[59] The affidavits of the Father’s mother, Maria Grossi, and sister, Annette Grossi, outline experiences relative to his mother, in particular, which are described by them as threatening, disturbing, and generally revolves around his financial distress.
[60] The Father’s mother, Maria Grossi, outlined specific incidents in which she claims that Mr. Grossi has threatened her if she refuses to give him money. She deposed that she paid for him to stay in a hotel for two years, and that she gave him the money to pay for the mental health assessment and parenting assessment the court ordered him to undergo. She deposed that she has had to call the police on numerous occasions and now has a security system at her home.
[61] For example, Maria Grossi deposed that on June 4, 2021, she was contacted at her home by a man who demanded payment of $25,000 allegedly owing by Mr. Grossi. She deposed that this man was “relentless” in trying to “extort” the money from her and intimidated her by saying he knows where she lived and worked. She contacted the police who cautioned this manner and threatened him with arrest which ultimately stopped this harassment.
[62] Mr. Grossi’s sister, Annette Grossi, deposed that she has been estranged from her brother for 7 years due to his behaviours. She corroborated Maria Grossi’s accounts of having police attend, Mr. Grossi’s demands for money from their mother, and the installation of a security system. She also voiced concerns about his stability, pointing to the fact that he slept in his truck on the driveway of their deceased grandmother as he has no fixed address and, indeed, to their mother’s chagrin, continues to use their mother’s address as his. Furthermore, her great aunts allowed him to stay at the deceased grandmother’s house until it was sold in December 2022 (for several months) rent free in the hopes he would become financially secure enough to obtain his own accommodation.
[63] Both of these deponents expressed concerns that Mr. Grossi is a risk to himself, Ms. Da Torre, the Child, and his mother based on examples provided in their respective affidavits.
[64] The affidavits of Mr. Grossi’s mother and sister supports Ms. Da Torre’s evidence that the Child’s alleged concerns for safety risks posed by the Father and her feelings of discomfort being with the Father unless in a supervised setting are legitimate, as does the affidavit evidence of the Child’s own therapist. The Mother provided evidence of some incidents that, if accepted, may justify the Child’s reluctance to see her Father at this time.
Daniel Grossi
[65] Mr. Grossi denies all of the allegations of violence and aggression made by Ms. Da Torre.
[66] He alleges that she has mental health issues.
[67] He blames Ms. Da Torre for the breakdown in his relationship with his daughter, and says Ms. Da Torre effectively sabotaged the parenting capacity assessment started by Dr. Morris.
[68] He also denies all of the accusations made by his mother and sister. He says that they are against him, and he has no relationship with them. He deposes that his aunts (Maria Grossi’s sisters) all love him and have no issue with him. However, he did not submit any affidavit evidence from any of his aunts.
[69] He specifically denied that he owed anyone $25,000 in response to his mother’s affidavit reference to the June 4, 2021 incident. He stated that he only owed this man $10,000, paid it, and there was no problem other than his mother making up her story of intimidation.
[70] However, the OCL Report states that, “According, to records from Toronto Police, also in June 2021, Mr. Grossi expressed concern for his safety and his family’s safety as he could not pay all of the money he owed to another individual”. This reference blatantly contradicts Mr. Grossi’ evidence and confirms the veracity of his mother’s evidence on this point.
[71] Mr. Grossi minimizes the concerns expressed in the OCL Report and highlights the comment in the Report that efforts should be made to repair the relationship between him and the Child.
[72] Mr. Grossi states that the reason why he has not engaged in many visits with his daughter is because he cannot afford the supervision fees. He chose to spend his limited financial resources on a parenting capacity assessment and the mental health assessment.
[73] Mr. Grossi has attached to his affidavit visit notes from Brayden which demonstrate that his visits with his daughter were positive.
[74] He also believes that Ms. Da Torre has disparaged him to the Child and discussed the court case. He points to the fact that the Child knew that Dr. Morris was paid by him, and that the Child knew when court dates were, underpinning her statement that he only wanted to visit her when there was an upcoming court date. He notes that he had to bring a motion in October 2021 in which Leiper J. ordered that Ms. Da Torre bring the Child to the parenting assessment and awarded him costs.
[75] Mr. Grossi believes that Ms. Da Torre has poisoned his relationship with the Child and has fed her false information aimed at making her afraid of him. For example, Ms. Da Torre told the Child that he had attended at their home to deliver a package, and this was in breach of a non-contact order. This made the Child afraid such that she built a fort in her home and stayed in it for a while. Mr. Grossi was arrested, but ultimately exonerated when the Crown was satisfied that he had sent a third party to deliver the package which was a gift for the Child. He notes that the OCL report only says that the Child reported being “slightly afraid” that he would be rude to her Mother.
[76] Mr. Grossi is concerned that if reunification therapy is not ordered now, his relationship with his daughter may be irreparable. He is not prepared to wait to the trial of this matter to have this issue resolved.
[77] He notes that he has earned approximately $50,000 per year up till recently, and that he has paid $8,000 in supervision fees to Brayden and $14,000 for assessments required pursuant to the Order of Sanfilippo J. In his reply affidavit, he states he has recently received a promotion and will now be earning around $100,000 per year.
[78] Ultimately, in one of his reply affidavits, sworn June 19, 2023, 2023, he provides his plan for reunification therapy. Namely, he proposes three options for who should conduct the reunification therapy: Rise Up Counselling, Toronto Family Therapy or Renew Supervision. The various therapists he recommends at those organizations have various hourly rates ranging from $170 per hour to $250 per hour. He requests that Ms. Da Torre submit any resulting invoices to her employee health benefits plan (but Ms. Da Torre has indicated that there is no coverage remaining after she submits the Child’s therapist’s invoices). He indicated that therapy could start in October 2023. Other than attaching the curriculum vitaes of the therapists, there is no other detail regarding the proposed plan for reunification therapy.
Dr. Abbas Azadian
[79] Dr. Azadian is a physician with a specialty certification in psychiatry. He conducted a mental health assessment of Mr. Grossi, and his findings and conclusions are reflected in his report dated December 4, 2019. He conducted a clinical assessment. This assessment was done pursuant to court order. He did not review any documents. The clinical assessment took place on December 4, 2019. It is unclear how long the clinical assessment took. What is clear is that Dr. Azadian based his opinion largely on Mr. Grossi’s self report and some psychological tests. It is unclear as to whether Dr. Azadian is qualified to score and interpret psychological tests. Only psychologists are qualified to interpret psychological test results and Dr. Azadian is not a psychologist according to his curriculum vitae.
[80] Dr. Azadian’s opinion is that Mr. Grossi does not suffer from any mental health condition based on what Mr. Grossi told him, and the results of certain psychological tests he administered (some, at least, of which are also based on self reports).
[81] On July 30, 2020, Dr. Azadian prepared an addendum updating his opinion by virtue of a document review based on documents provided by Mr. Grossi’s lawyer. Those documents were not medical in nature. They were the affidavits sworn in the course of this litigation. His 2019 opinion was not altered.
[82] I do not place much confidence in Dr. Azadian’s opinion. His opinion is based on Mr. Grossi’s self report, a clinical assessment of unknown duration, and Mr. Grossi’s test scores on certain selected psychological tests. It does not take into account Mr. Grossi’s health history or any underlying medical or psychological records in relation to Mr. Grossi.
[83] In any event it is of little value to the issues in this motion, other than to demonstrate that Mr. Grossi had it done, as required by the order of Sanfilippo J.
Dr. Raymond Morris
[84] Dr. Morris is a registered psychologist. He was retained by Mr. Grossi to conduct a clinical assessment of him in relation to an evaluation of his parenting capacity, pursuant to the order of Sanfilippo J.
[85] Dr. Morris’ report dated February 22, 2022 was attached as an exhibit to his affidavit.
[86] Dr. Morris was also jointly retained by Mr. Grossi and Ms. Da Torre to conduct a parenting capacity assessment.
[87] Dr. Morris saw Mr. Grossi for a total of 6.5 hours, observed Mr. Grossi and the Child in an observation session for approximately eight minutes, and saw the Child individually for five minutes.
[88] In addition, Dr. Morris conducted collateral interviews including with Ms. Da Torre.
[89] Dr. Morris concluded, with respect to Mr. Grossi, that there was no “substantive evidence of a major mood or cognitive disorder that would render him unfit to parent. He does, however, have personality traits like a need for attention and affection that created some interpersonal challenges for him”.
[90] In the end, Dr. Morris was unable to complete the parenting capacity assessment because he did not have a sufficiently long observation session of Mr. Grossi with the Child owing to the fact that the Child left after about 8 minutes. It was apparent to Dr. Morris that the Child had been given a safety plan, likely by Ms. Da Torre, that empowered her to leave that session, as well as the individual play session with Dr. Morris. With respect to the observation session with Mr. Grossi, the Child got up and walked out of the office with the Brayden supervisor. When the Brayden supervisor returned a few minutes later, he advised that the Child would not be returning. With respect to the session with Dr. Morris, she put up her hand in what Dr. Morris concluded was a safety signal and said she would like to leave to go to the washroom. She then walked past Dr. Morris, told her mother she wanted to leave, and left.
[91] Dr. Morris could not make any recommendation regarding Mr. Grossi’s parenting access to the Child. However, he concluded that “there does not appear to be any reason why at the very least that [parenting relationship] should not be re-established, if [the Child’s] anxiety and discomfort can be resolved” (emphasis in the original).
[92] Dr. Morris’ opinion is of little assistance with respect to this motion. While he has surmised that a safety plan was provided to the Child to allow her to leave these sessions, he does not comment on parental alienation in his report nor of reunification therapy specifically. He also conditions his comment that there should be a re-establishment of the father/daughter relationship but only if the Child’s own and anxiety can be resolved.
The Office of the Children’s Lawyer’s s. 112 Report
[93] On February 18, 2022, Justice O’Brien requested the involvement of the Office of the Children’s Lawyer to provide services pursuant to s. 112 of the Courts of Justice Act and prepare a report. The OCL consented to this request on April 11, 2022, and conducted an investigation consisting of interviews of Mr. Grossi, Ms. Da Torre and the Child, as well as several collateral interviews. The clinical investigator observed interactions between Mr. Grossi and the Child and Ms. Da Torre and the Child (via video link), and also examined written records.
[94] The OCL prepared a report dated September 1, 2022. It is attached to the affidavit of the clinical investigator, Heather MacInnis.
[95] Pursuant to s. 112(6), the affidavit and attached OCL Report forms part of the evidence at the hearing of this motion. The admissible portions of the report relate to the statements of fact and observations, but not any portions that are the clinical investigator’s opinion where that opinion would be the subject of expert evidence (Ojeikere v. Ojeikere, 2018 ONCA 372, citing with approval para 22 of Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212; Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517 at para. 73, both cited in the recent decision of A.B. v. S.M., 2023 ONSC 1718, at paras. 42-43).
[96] The OCL Report does not reflect any concerns that Ms. Da Torre is engaged in any parental alienating behaviour with the Child. The OCL Report notes that Ms. Da Torre has initiated and paid for individual counselling sessions for the Child with Ms. Kara and that Ms. Da Torre is supportive of supervised parenting visits between Mr. Grossi and the Child. The OCL observed a close, nurturing and healthy relationship between the Child and Ms. Da Torre.
[97] The OCL also interviewed Ms. Da Torre and recorded her safety concerns about Mr. Grossi towards herself and the Child, and her concerns about his alleged instability.
[98] Importantly, the OCL interviewed the Child on three separate occasions. The Child expressed to the clinical investigator that she felt safe with her father only when visits were supervised. She gave examples of what made her uncomfortable around her Father and how she believed having a supervisor discouraged her father from engaging in such behaviours. She also told the investigator that, in light of the randomness of, and lack of continuity in, her father’s visits with her, he was not a big deal in her life. While she enjoys spending time with him, in a supervised context, “he’s not too big of a figure in my life” and she has more important “stuff” to work on.
[99] The OCL Report also noted that Mr. Grossi conceded he did not regularly exercise his parenting time nor connect with the Child’s professionals including her school principal and her therapist. The report states that “Mr. Grossi’s lack of consistency and follow through is concerning as [the Child] deserves to have a sense of predictability and stability with her father”. The Report states that there:
“appears to be some uncertainty about the strength of the father/daughter relationship, particularly given Mr. Grossi’s lack of consistent parenting time. As it would seem that they did have a close relationship at one time, effort should be made to try and repair this connection in a supportive, positive and safe environment for [the Child].”
[100] The Report also characterized some of Mr. Grossi’s actions and behaviours, such as seeming to “aggressively involve his mother” in order to deal with his financial issues, his lack of consistent employment and/or financial means to consistently pay for parenting time supervisors and his living arrangements, as “very concerning”. The Report stated that Mr. Grossi did “not always appear to be upfront about his actions”.
[101] However, no where in the OCL’s report is there any suggestion that the Mother has engaged in any form of parental alienation. Rather the report seems to point to other factors such as the inconsistency of Mr. Grossi exercising parenting time with the Child and his failure to access information about the Child (such as medical and education) which was and is available to him. The report concludes, in part,
Given that Mr. Grossi has continued to present with some instability in his own life, not been able to consistently exercise parenting time or demonstrate predictable and stable behaviour to make [the Child] always feel safe, there continues to be concern about his ability to ensure consistent, positive and safe visits. As [the Child] articulated enjoyment with supervised visits, it would be recommended that Mr. Grossi’s parenting time with [the Child] be at Ms. Da Torre’s discretion and in accordance with [the Child’s] wishes. It would also be recommended that parenting time be supervised and occur within therapeutic guidelines.”
[102] There is no specific recommendation that reunification therapy be engaged in.
Conclusion
[103] Returning to the factors outlined in Leelaratna as being “hugely relevant” to the exercise of discretion to make a therapeutic order, such as for reunification therapy:
(a) The cause of the family dysfunction is not clear on the evidence, expert or otherwise. In particular, the evidentiary record speaks to a number of factors that may be the cause of the Child’s alienation from Mr. Grossi, including the lack of continuity by Mr. Grossi in exercising his right to supervised visits punctuated by lengthy gaps in time in which he had no contact with the Child owing, apparently, to his lack of financial resources and also, for one such period, COVID-19. As a result, it is not possible on the basis of the current evidentiary record to determine whether reunification therapy is the right form of therapy that would be beneficial to the Child; (b) There is no compelling evidence that the proposed reunification therapy would be beneficial to the Child, particularly so long as she expresses safety concerns and/or discomfort in seeing the father in an unsupervised setting, or at all. The current course of the Child attending at her own therapist, paid for through Ms. Da Torre’s benefits, appears to be the best course for addressing her own issues arising from the domestic conflict and apparent estrangement from her father for the time being; (c) This motion was brought virtually on the eve of trial. Trial is now about two months away. The proposed therapy would not have started until October 2023, at the earliest. At this stage of the proceedings, in order to minimize disruption to the Child, it is better to await the trial so that the court will have a full evidentiary record on which to base its decision regarding what therapeutic order, if any, is in the best interests of this Child. [3] (d) It appears that while the Child will voluntarily engage in therapy, as shown by the fact she is participating in her own individual therapy, it also appears that she is resistant to participating in therapy if the therapist is paid for by the Mr. Grossi suggesting a lack of trust issue.
[104] As stated, there is no expert evidence on the utility of reunification therapy, much less the plan. While expert evidence is not always necessary, it may be here. The lack of a detailed plan for reunification therapy, and any necessary preliminary steps such as therapy for the Child, is another challenge at this stage in the proceedings. Mr. Grossi’s proposal is simply putting forward a number of alternative therapists who would be satisfactory to him and that therapy start as soon as possible; ie. October 2023 or thereabouts.
[105] In this case, the Child is 12 years old. As stated, there is evidence that the Child is willing to engage in therapy, provided that therapist is not hired by the Father. However, there is insufficient evidence of a reunification plan of therapy from the Father with the degree of specificity suggested in Leelaratna, and the Mother opposes any such reunification therapy.
[106] As was the case in Barrett v. Huver 2018 ONSC 2322 at para. 17, cited in Leelaratna at para 70, it is not possible 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 Child.
[107] Of particular resonance to the current motion is Audet J.’s observation at para 73 of Leelaratna that caution must be exercised before imposing a therapeutic order on the basis of “untested and contradictory evidence or without a professional assessment”. In this case, the competing concern that a lack of decision runs the risk of further entrenching potential alienation is not particularly apt here, where the trial is two months away.
[108] Mr. Grossi has not persuaded me on the present evidentiary record that Ms. Da Torre has acted in a way that is designed to and/or has the effect of having alienated the Child from him and reunification therapy is in the best interests of the Child. However, a trial judge will also have the benefit of the Voice of the Child report and hearing from witnesses so as to assess credibility on the major relevant material facts.
[109] At trial, the court will have the benefit of a trial record, with evidence that will be tested in which the Mother’s resistance to reunification therapy, and the Child’s alleged resistance to seeing her father and the underlying reasons, can be properly assessed. Furthermore, there may be expert evidence adduced on this issue.
[110] I recognize that there is some evidence suggesting Ms. Da Torre might be directing the Child with respect to the alleged need to be vigilante about her safety when in the presence of Mr. Grossi. If this is so, it might be rooted in Ms. Da Torre’s own alleged fear of Mr. Grossi. However, this evidence must be balanced against the observations of professionals (OCL, Child’s own therapist who has professional obligations) that the Child’s anxiety and concern for her safety around her father may be from factors independent of the mother’s apparent vigilance and own internal anxiety and fear around Mr. Grossi. Whether or not that concern is justified must be determined at trial.
[111] The risk of further potential alienation or harm to the relationship between the Child and Mr. Grossi is relatively modest given (a) the fact that the Father has utilized little of the authorized parenting visits over the past several years which may have contributed to the estranged relationship between them, and (b) the closeness of trial where a more informed decision with the benefit of assessing witness’ credibility, will occur. This will also give the parties more time to consider the appropriate therapeutic order and detailed plan of implementation of any such proposed order.
[112] Furthermore, the court and the parties will have the benefit of hearing more current views of the Child through a Voice of the Child Report that post dates the more recent allegations that the Child no longer wishes to see her father, except perhaps in a supervised environment.
Family Violence Allegations by Ms. Da Torre
[113] Ms. Da Torre raised family violence allegations. She has tendered some evidence to support these allegations by way of her own affidavit, and the affidavits of Annette and Maria Grossi.
[114] The amendments to the Divorce Act and the jurisprudence following, has underlined the relevance of a history of family violence to the best interests of the child analysis (Barendregt v. Grebliunas, 2022 SCC 22, at paras. 145-146; McBennett v Danis, 2021 ONSC 3610, at para. 92).
[115] In Dayboll v. Binag, 2022 ONSC 6510, at para. 41, Pazaratz J. outlined examples of behaviour that constitute family violence.
[116] There are clear challenges in assessing the credibility of allegations of family violence on the basis of a paper evidentiary record.
[117] The court must take into consideration many factors, including, but not limited to:
(a) Police intervention, and outcomes; (b) Any court determinations, particularly whether there has been a conviction concerning the same or substantially the same allegations; [4] (c) Evidence in the nature of confirmation or corroboration of the allegations; (d) Internal consistency (or inconsistency) of the party’s allegations with their sworn testimony and documentary evidence; and (e) Relevant surrounding circumstances going to the plausibility, or lack thereof, of the allegations.
[118] The court must also assess the seriousness of risk of harm to the Child arising from the allegations of family violence.
[119] Finally, the court is making its findings in relation to family violence on a balance of probabilities.
[120] In this case, there is some evidence in the nature of confirmation of the family violence allegations from the affidavits of Annette and Maria Grossi. As stated, however, there were no cross examinations conducted.
[121] In light of my overall finding, I decline to make a determination with respect to the allegations of family violence and leave those to the trial judge to be made on a more fulsome evidentiary record, and with the benefit of examination and cross examination of the witnesses.
Disposition and Costs
[122] This motion is dismissed for the reasons indicated.
[123] If the parties cannot agree on costs, I will accept cost outlines and written submissions not to exceed 3 double spaced pages each. The Applicant shall deliver her materials within 10 days from today, and the Respondent’s materials to be delivered within 10 days thereafter.
Justice S. Vella
Released: October 30, 2023
Footnotes
[1] As will be discussed later in these Reasons, a s. 112 of the Courts of Justice Act report was issued by the Office of the Children’s Lawyer on September 6, 2022 (the “OCL Report”).
[2] While Ms. Kara’s opinion is part of the ultimate issue to be decided, I find that her opinion is a relevant consideration which is based on her involvement as a treating therapist. She could have been cross examined by Mr. Grossi but was not.
[3] No cross examinations on any of the affidavits were conducted.
[4] Note that acquittals obtained in criminal proceedings are not relevant and therefore not admissible in other proceedings since acquittals are not the equivalent of a finding of innocence. Rather, acquittals mean the Crown failed to discharge their burden of proof only; see Polgrain Estate v. The Toronto East York General Hospital, 2008 ONCA 427.