COURT FILE NO.: FS-18-00000110
MOTION HEARD: 20231215
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: G.K., Applicant
AND:
C.K., Respondent
BEFORE: MILLER J.
COUNSEL: S. Okola, for the Applicant
B. Ludmer as agent, for the Respondent
C.K., Respondent
G.Carpenter, for the OCL
HEARD: December 15, 2023
REASONS FOR DECISION
1This motion follows on a three week trial and a decision given by me on June 5, 2023.
2C.K. brings a motion seeking:
a) An Order finding the Applicant mother, G. K. , in breach of the Trial Decision of Justice Miller dated June 5, 2023 (“Trial Decision”), specifically paragraphs 265 and 267.
b) An Order that the Applicant shall hereafter strictly comply with the Trial Decision (as well as any further Court Order), particularly as it relates to individual therapy for E.K., family therapy and sharing of information.
c) An Order that the Applicant shall pay a financial penalty in the amount of $1,000 each time she fails to comply with the Trial Decision in relation to individual therapy for E.K., family therapy and sharing of information.
d) An Order clarifying the context and purpose of the ‘Individual Therapy’ for E.K. as set out in the Trial Decision.
e) An Order clarifying the context and purpose of the ‘Family Therapy’, specifically an Order setting out who, when, how and for what period/purpose.
f) An Order that a copy of the Trial Decision, Shazeeda Haroon Reunification Therapist Final Report and OCL findings shall be provided to the individual therapist for E.K., and to the Family Therapist.
g) An Order permitting the Respondent to select the family therapist.
h) An Order permitting the Respondent and the paternal family to commence family therapy with E.K.
i) An Order that the individual therapist for E.K. provide updates to the parties, to the Family Therapist and/or the Court on E.K’s progress, specifically if significant related concerns arise.
j) An Order addressing the Applicant’s actions in light of paragraph 267 of the Trial Decision.
k) An Order for guidance and direction with respect to S.K. and ensuring she and her providers have the appropriate information regarding the family situation, so that S.K. can make informed decisions with respect to engaging in Family Therapy and potentially a reunification process with the Respondent Father.
l) An Order clarifying whether the parenting time provisions in the Trial Decision supersedes all of the terms of the parties’ final Parenting Agreement/Arbitral Award, specific to the individual clauses that were agreed to.
3It is C.K.’s position that G.K. is not in compliance with the orders made by the Court in the June 5, 2023 decision, and that she must be sanctioned in accordance with Rule 1 (8) to ensure her future compliance. The agent for C.K. has provided a statement of law addressing the powers of the court in this regard and with respect to honouring the spirit and intent of the orders made by the court.
4G.K. takes the position that she has complied with the trial decision and that C.K.’s motion should be dismissed with costs.
5The OCL takes the position that continued involvement of OCL is not helpful to the children. Counsel for the OCL submits that the trial decision is lengthy and clear and the parties have to figure out how to work with it and each other and that motions court cannot be the new forum for argument for this family in perpetuity.
(i) Family Therapy
6At paragraph 265 of my June 5, 2023 decision I ordered that:
As part of the decision-making protocol, the parties shall consult with each other, and agree upon, a Family Therapist to provide individual counselling and/or therapy services as recommended by the Family Therapist for E.K.. If the parties cannot agree, they may return before the Court on a motion for the Court to select E.K.'s therapist. Such motion, if necessary, should also address E.K.’s own views and preferences in this regard.
The parties shall sign and execute any forms necessary to effect retaining the Family Therapist and/or individual therapist for E.K., and shall not delay or impede this process.
The parties shall share the costs for the Family Therapist and/or E.K.'s therapist in proportionate shares, pursuant to their annual incomes.
The Applicant Mother may enrol S.K. in individual counselling or therapy without the consent of the Respondent Father. Such therapy shall be determined in consultation with the team that is treating her for her eating disorder, and shall not interfere with or materially impact the protocols for treatment set out by said treatment team.
If S.K. wishes to have any contact with the Respondent Father, or is willing to engage in reunification therapy with the Respondent Father, the Applicant Mother shall encourage, support and facilitate such contact, taking into consideration S.K.'s best interests, as well as her views and preferences.
If S.K. wishes to engage in reunification therapy with the Respondent Father, the selection of reunification therapist shall be made in accordance with the recommendations of the Family Therapist.
7The evidence before me on this motion is that E.K. is engaged in individual therapy with a family therapist. C.K. submits that G. K. is in violation of the order at paragraph 265 because he has asked G. K. to participate in Family therapy and she has refused.
8G.K. takes the position that she has complied with the trial decision. She points to evidence that C.K. acknowledges that the parties agreed upon an individual therapist for E.K. and he does not claim that said therapy is going poorly.
9The order made at paragraph 265 of my June 5, 2023 decision requires “individual counselling and/or therapy services as recommended by the Family Therapist”. It is for the therapist to determine the scope of the therapy.
10There is no evidence before me that the therapist, agreed upon by the parties, to provide individual therapy for E.K., has recommended “family therapy”. Should that recommendation be made by E.K.’s therapist, the purpose and parameters, including who is to participate, is to be in accordance with the recommendation by the therapist.
11I find that G.K. has complied with the order made at paragraph 265 of the June 5, 2023 trial decision.
(ii) Material to be Provided to the Therapist
12The evidence before me on this motion is that C.K. provided E.K.’s therapist with a copy of the trial decision; a copy of a report by Shazeeda Haroon, former reunification therapist which was an exhibit at trial, and the OCL summary of views and preferences, also a trial exhibit. G.K. objected to the therapist having this material.
13At paragraph 266 of the June 5, 2023 decision, I ordered that
… the parties may provide a copy of the Order as they decide may assist third parties to assist in compliance with the Order. The judgment may not be provided to third parties except as may be necessary to pursue an appeal, unless with leave of the Court.
14C.K. was in violation of this order when he provided a copy of the trial decision to the therapist. However, had he sought leave to do so, I would have granted it. Leave is granted to both parties to share the trial decision with the child’s therapist.
15C.K. seeks an order that that a copy of the Trial Decision, Shazeeda Haroon Reunification Therapist Final Report and OCL findings shall be provided to the individual therapist for E.K., and to the Family Therapist. I decline to make such an order. Either parent is at liberty to communicate to the child’s therapist information they feel may be helpful. It will be for the therapist to decide what is or is not helpful to the therapeutic process.
(iii) Updates from the Therapist
16C.K. seeks an order that that the individual therapist for E.K. provide updates to the parties, to the Family Therapist and/or the Court on E.K’s progress, specifically if significant related concerns arise. I decline to make such an order. The therapist may provide updates as the therapist sees fit, but I decline to make an order that might impinge upon the therapeutic relationship.
(iv) Information sharing
17At paragraph 267 of my June 5, 2023 decision I ordered that:
…each parent shall, within seven days of this Order, provide the other parent with complete information about the children’s (both E.K. and S.K.) calendars including extracurricular activities, school events, and other activities/events including times, addresses, contact information, payment status, and all other pertinent information. The obligation to provide calendar information for the children is an ongoing one.
18It is C.K.’s position that G.K. is in violation of this order as she completely failed to provide the information until this motion was brought. It is C.K.’s position that thereafter the information provided does not comply with the order.
19G.K.’s position is that she complied with the order, even before the motion was brought, and that C.K.’s complaint has only to do with the content of the information provided.
20I have no documentary evidence from either party on this. I have bald statements from C.K. that G.K. has not complied and I have a bald statement from G.K. that she has complied. The evidentiary record does not permit me to make a finding as to whether or not G.K. is in compliance with the order at paragraph 267. The onus is on the party who asserts a Rule 1 (8) violation. C.K. has not met this onus.
(v) Information for S.K. and her providers
21C.K. seeks an order:
… for guidance and direction with respect to S.K. and ensuring she and her providers have the appropriate information regarding the family situation, so that S.K. can make informed decisions with respect to engaging in Family Therapy and potentially a reunification process with the Respondent Father.
22At paragraph 265 of my June 5, 2023 decision I indicated that:
If S.K. wishes to have any contact with the Respondent Father, or is willing to engage in reunification therapy with the Respondent Father, the Applicant Mother shall encourage, support and facilitate such contact, taking into consideration S.K.'s best interests, as well as her views and preferences.
If S.K. wishes to engage in reunification therapy with the Respondent Father, the selection of reunification therapist shall be made in accordance with the recommendations of the Family Therapist.
23C.K. is concerned that S.K. is not being appropriately encouraged to resume her relationship with him. In his material he provides one photograph of S.K., submitting that she appears to be healthy and therefore her eating disorder should not be a barrier to a resumption of his relationship with him. He also submits that as she has recently been travelling she is apparently well and healthy.
24G.K.’s affidavit indicates that S.K.’s recent travel was “to assist her with managing her Eating Disorder and anxiety”.
25My decision sets out in detail the breakdown of the relationship between S.K. and C.K. around S.K.’s mental health struggles. My decision at paragraph 265 also specifies that any therapy for S.K. shall be determined in consultation with the team that is treating her for her eating disorder, and shall not interfere with or materially impact the protocols for treatment set out by said treatment team.
26I have no evidence from S.K.’s treatment team as to S.K. current state of health or whether she is in a position to consider reunification therapy with C.K. I have no evidence as to whether the treatment team has information about the “family situation”.
27S.K. is now 16 and well able to communicate with her treatment team, and/or an individual counsellor details of the “family situation”. It is not clear to me what additional information C.K. would provide or want direction from the Court as to what he could provide to the treatment team or counsellor that S.K. cannot.
28I can understand C.K.’s frustration that there has been no move by S.K. to date to resume her relationship with him or to begin reunification therapy, but as set out in my June 5, 2023 decision, S.K.’s health is a priority over what C.K. wants.
(vi) The Applicant’s Monitoring of Communications with E.K.
29Counsel for the OCL attended the motion and advised that they had complied with my order in the June 5, 2023 decision as set out at paragraphs 228 and 264:
The Applicant Mother shall monitor all communications between the children, in person and by any form of electronic communication, to ensure the children, including B.K., are not discussing their father in a negative way, nor enquiring of each other whether they are or feel safe in the father’s company.
The OCL shall communicate to the children that the Court has ordered the Applicant Mother to do so.
30C.K. describes two instances which he indicates demonstrates that G.K. is not in compliance with that order.
31C.K. indicates that on March 19, 2023 E.K. told him that her sisters B.K. and S.K. had been denigrating her friend who is a neighbour of C.K. C.K. raised this in an OFW communication with G.K. on March 21, 2023. G.K. responded on March 22, 2023 that she would speak to B.K. and S.K. about this. C.K. complains that there was no follow up communication about this. He has not provided evidence of any communication from him in which he asked for follow up.
32G.K. in her affidavit indicates she spoke to S.K. and B.K. about this the very same day and that there has been no follow up as E.K. never raised it with her, nor is there any indication that E.K. has ever raised it again with C.K.
33C.K. indicates that on April 25, 2023 G.K. advised him that E.K. was upset and did not want to participate in a video call with him. Shortly after, G.K. advised C.K. that E.K. now wanted to participate in the video call with him. E.K. did participate in the video call but told C.K. that she had been upset because S.K. was making fun of her for wanting to participate in a video call with C.K.
34C.K. raised this with G.K. and complains there was no response. There is no evidence that C.K. asked for any follow up on this issue from G.K. G.K. in her affidavit indicates that E.K. has never told her that S.K. made fun of her for having zoom calls with her father. When G.K. asked S.K., she told her she has never spoken to E.K. about having calls with her father.
35Both incidents precede my June 5, 2023 decision and the order that G.K. ensure the children are not discussing their father in a negative way. In any event I am satisfied on the evidence that G.K. dealt with both reported incidents in an appropriate way. However, it would have been more in the spirit of co-parenting had G.K. followed up by advising C.K. that she had spoken to the children about the reported behaviour.
(vii) The Arbitral Parenting Award
36C.K. seeks an order clarifying whether the parenting time provisions in the Trial Decision supersedes all of the terms of the parties’ final Parenting Agreement/Arbitral Award, specific to the individual clauses that were agreed to.
37G.K.’s position is that the trial decision supersedes the parties’ final Parenting Agreement/Arbitral Award.
38At paragraphs 259-261 of the June 5, 2023 trial decision I ordered that parenting time between S.K. and the Respondent Father shall be at S.K.’s discretion, and that:
…parenting time for E.K. shall be on a shared schedule, with E.K. spending at least 40% of her time in each parent’s' care every month. The parenting time schedule shall take into consideration the Respondent Father's flying schedule. Whenever possible, taking into account the Respondent Father’s work schedule, the parenting schedule shall also accommodate E.K.'s stated preference to have shorter periods of transition between the parties' homes.
39And that:
… parenting time exchanges shall occur at the home of the parent that has had E.K. in their care as per the parenting time schedule. I order that both parties shall refrain going on property where the other lives or works without the other's consent. Neither party shall go to the other's home except n reasonable notice and only for the purpose of picking up or dropping off the child(ren).
40The parties’ final Parenting Agreement/Arbitral Award addresses details of shared parenting that the trial decision does not specifically address, for example, parenting time during school holidays. To the extent that the parties’ final Parenting Agreement/Arbitral Award is not inconsistent with the trial decision, it is not superseded by the trial decision.
Costs
41The parties each submitted a Bill of Costs for this motion and made cost submissions. There were no Offers to Settle to be considered on the issue of Costs.
42In accordance with Rule 24 (1) of the Family Law Rules there is a presumption that the successful party is entitled to costs. Rule 24 (11) provides:
A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
43As the successful party on this motion, G.K. is entitled to her costs. I have reviewed her Bill of Costs and find it reasonable and proportionate taking into account the importance and complexity of the issues, time spent and expenses paid. I note that the Bill of Costs submitted by C.K. was almost identical in the amount claimed.
44In my view this motion was entirely unnecessary and is demonstrative of C.K. continuing to try to re-litigate the trial issues. I find that G.K. is entitled to her full indemnity costs in the amount of $8,469.35.
MILLER J.
Date: December 18, 2023