Court File and Parties

COURT FILE NO.: FS-24-00040955-0000 DATE: 20240806 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Mary Tsombanakis, Applicant – and – James Lambis, Respondent

Counsel: Richard Niman, lawyer for the Applicant Patricia Virc, lawyer for the Respondent

HEARD: July 23, 2024

Endorsement

DIAMOND J.:

Overview

[1] On June 13, 2024, the applicant brought a motion before me seeking (primarily) an order requiring her and the parties’ daughter (“C”) to participate in reunification therapy with a family therapist Dr. Barbara Fidler (“Dr. Fidler”), with the respondent paying for the associated reunification therapy expenses subject to re-apportionment in this proceeding.

[2] On that day, I seized myself and adjourned the motion to July 23, 2024, and strongly suggested (but did not formally order) that in the meantime, the applicant and C meet in person. I explicitly indicated that C could bring her own therapist Sherry Rapuch (“Rapuch”) with her to the suggested meeting, and that C need not say or do anything during the meeting if she chose to attend. Essentially, my interim Endorsement created a forum for the applicant and C to hopefully start a process towards reunification.

[3] The meeting did take place on July 18, 2024. Further affidavits from the applicant, the respondent, and Rapuch were served and filed after the July 18, 2024 meeting and filed with the Court on the eve of the July 23, 2024 motion. Particulars of that meeting, the breakdown of the relationship between the applicant and C, and the current state of affairs, are all set out in greater detail hereinafter.

[4] The applicant’s motion was fully argued before me on July 23, 2024.

[5] At the conclusion at that hearing, I took my decision under reserve.

Summary of Relevant Facts

[6] Some of the salient background facts for this motion are set out in my Endorsement dated July 30, 2024 which decided the applicant’s motion for interim spousal support. On this motion, I continue to rely upon November 13, 2023 as the separation date between the parties. Particulars of the events that occurred on that date are set out hereinafter.

[7] The parties were married for 18 years, and cohabitated for 20 years.

[8] C was born on December 25, 2008, and is currently 15 years of age.

[9] The applicant submits that she was C’s primary caregiver since birth, having made all of the decisions for C respecting school, relying upon the applicant’s background as an experienced teacher/educator.

[10] Notwithstanding, the applicant believes that C is a vulnerable teenager who is highly influenced by the respondent. In her affidavit, the applicant describes some “alleged concerning behaviour” displayed by the respondent with C, including the following allegations:

• Commencing in 2021, the respondent would ask C to meet him secretly in the bathroom for hugs;
• C would come secretly to the respondent’s bedroom and the respondent would lock the door;
• The respondent would be out all hours of the evening leaving C at home alone and not feeding her dinner;
• The respondent was physically inappropriate towards C in the presence of maternal family members;
• The respondent took inappropriate pictures of C’s minor cousin at the pool in her bathing suit and instructing the cousin not to tell her mother that the photos had been taken.

[11] According to the applicant, prior to separation C began to exhibit signs of obsessive compulsive disorder (“OCD”) and anxiety which led to C having difficulties with displays of affection. C also developed hives and rashes from the associated stress.

The Fallout from Separation

[12] On November 13, 2013, the respondent was charged with assaulting the applicant, and the respondent was removed from the matrimonial home. Since separation, the applicant has not had any contact at all with C, and C has been residing solely with the respondent.

[13] Shortly after the respondent was removed from the matrimonial home and began residing with C, he consulted Howard Hurwitz (a social worker known to the Court with expertise in high conflict family disputes) and Mr. Hurwitz recommended Rapuch to be retained as C’s private therapist. Since December 2023, C has participated in at least 12 separate sessions with Rapuch.

[14] As a result of the assault charge, and the respondent’s alleged behaviour as described and reported by the applicant, the Children’s Aid Society (“CAS”) was contacted and conducted an investigation which has now been completed.

[15] The CAS investigation confirmed two potential emotional risks of harm to C. One of those risks was the respondent’s potential post-separation alienation of C from the applicant. The respondent believed that the CAS worker had a personal agenda which was “highly focused on reunification therapy”. CAS did express a concern that the respondent may have denigrated the applicant in C’s presence, and has not made an active, fulsome effort towards C resuming contact with the applicant.

[16] The CAS report described the respondent and C sharing the same bedroom for the seven initial months since separation, and the respondent having kept C up until 3:00 am on at least one occasion.

[17] However, CAS also concluded that C is happy, feeling better and does not want to resume contact with the applicant at this time. C’s physical manifestations (hives, etc.) have since improved.

[18] In its disposition analysis, CAS stated as follows:

“C has reported that she has been discussing with her therapist boundaries that she would need in place in order to feel comfortable in resuming contact with her mom. It is therefore hoped that this will assist C to reconnect with her mother … it is expected that (the respondent) will support C around whatever decisions are made.”

[19] According to Rapuch, C does not currently want to have any contact with the applicant, and C’s decision in that regard is often discussed during therapy sessions with Rapuch. C has been consistently clear to Rapuch that the decision not to see the applicant is C’s decision alone, although supported by the respondent. C believes that if and when she decides to resume contact with the applicant, the respondent would support her decision.

[20] According to Rapuch, C has described the applicant’s historic behaviour as erratic and unpredictable, including episodes where the applicant talked down to C and embarrassed her in public in front of others. C believes the applicant to be a liar although some of those lies “may be based on some truths”. C describes her historic relationship with the applicant as “never good”. C also denies (to her understanding) that the respondent ever assaulted the applicant.

[21] There is evidence in the record that the applicant has searched through both the respondent’s phone and C’s phone on previous occasions without their respective permissions. The applicant has also looked through the respondent’s personal belongings on occasion without his permission.

[22] With respect to the allegations dealing with the respondent’s inappropriate behaviour, there is also evidence in the record that the applicant told CAS that in terms of potential sexual abuse, “I don’t believe that anything happened”. C informed CAS that the respondent never crossed any alleged boundaries. C also gave evidence to Rapuch, and to CAS, that the text messages found by the applicant to be inappropriate were all taken out of context.

[23] According to Rapuch, reunification therapy with the applicant has a poor chance of success at this time as C would not engage in it voluntarily. Rapuch opined that if C was ordered to have parenting time with the applicant, it would significantly increase C’s anxiety and stress which has improved since separation. Rapuch believes that C needs more time to process various complicated emotions arising from the parties’ separation.

[24] While C does not currently wish to attend reunification therapy, Rapuch has stated that if any parenting time was ultimately ordered by the Court, C would in all likelihood attend as she is compliant by nature.

[25] The respondent believes that it is C (with Rapuch as her therapist) who is the only individual who can decide when she should resume contact with the applicant.

The July 18, 2024 Meeting

[26] As stated, my Endorsement dated June 13, 2024 suggested that the applicant and C attend a meeting. The evidence filed subsequent to that July 18, 2024 meeting has now been reviewed by the Court in detail.

[27] While the terms of my June 13, 2024 Endorsement sought to create a forum designed to afford the applicant and C an opportunity to meet and hopefully begin some form of a reunification path, prior to the July 18, 2024 meeting occurring, Rapuch seemingly interpreted my Endorsement to mean that the meeting would be focused upon providing the applicant an opportunity to explain herself and express her thoughts. This was presumably based upon my comment that C was not obligated to attend, and if attending she was not required or do or say anything during the meeting.

[28] While I have no reason to doubt that Rapuch’s interpretation was made in good faith, her interpretation was nevertheless somewhat unfortunate, as the point of the proposed meeting was to create no expectations on either party. As a mature minor, C was not being ordered to attend or do or say anything if she attended. The meeting was to give both parties the opportunity to participate in any way they deemed fit or appropriate. This included the applicant, and in my view the additional term of having the applicant “explain herself” as proposed by Rapuch risked an unfair expectation being placed upon the applicant.

[29] Indeed, while the applicant gave evidence that she was overjoyed to see C, and the applicant and C did converse with a view to updating the applicant on C’s life post-separation, C did ask the applicant to “explain what happened on November 13, 2023”. In response, the applicant advised C that “the matter was before the courts” and she did not have anything to explain.

[30] In her affidavit, Rapuch gave evidence that it was C who wanted to impose the condition that the meeting be focused upon giving the applicant an opportunity to explain herself and her thoughts. While I cannot make any definitive finding as to where, how or with whom that term originated, it was still unfortunate that any expectation was placed upon either party as, according to Rapuch, C subsequently felt that the applicant did not explain herself and that the applicant was blaming C and the respondent for what had happened. There may be some basis for C’s subjective feelings and conclusions from that meeting, but that was not the purpose of the meeting as set out in my June 13, 2024 Endorsement.

[31] There is no doubt however that C was disappointed with the applicant’s lack of explanation(s), and C is still not interested in participating in reunification therapy at this time.

Decision

[32] Both parties agree that the Court has the jurisdiction to order children to attend therapy. What is in dispute between the parties is whether or not the governing test to support the Court making such an order has been met by the applicant.

[33] The governing test mandates the Court to consider five essential factors. As set out by Justice Audet in Leelaratna v. Leelaratna, 2018 ONSC 5983, the Court ought to take the following factors in mind when deciding whether to exercise its discretion:

(a) is the cause for the family dysfunction (whether alienation, alignment or estrangement) based on expert evidence or otherwise? (b) is there compelling evidence that the counselling or proposed therapy would be beneficial to the child? (c) at what stage is the therapeutic order sought (a motion based on potentially incomplete evidence vs. a trial based on a full evidentiary record)? (d) is the parent(s) likely to meaningfully engage in counselling despite his/her/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?

[34] I will now attempt to address each of these five main, relevant factors.

[35] With respect to the cause of the family dysfunction, there is no admissible expert evidence in the record before the Court. I am not prepared to treat Rapuch’s evidence as independent, admissible opinion evidence at this time. At most, Rapuch is a treating, participant expert, much like a fact witness able to give an opinion.

[36] The Court is therefore left with the diverging accounts of the parties. The applicant urges this Court this find that C’s preferences should not be considered as they are the result of efforts by the respondent to further alienate the applicant. With respect, I cannot not come to that conclusion on the evidence before the Court. The fact that C does not want to spend time with the applicant does not mean, in and of itself, that this alienation was caused by the respondent. I agree with the respondent that his efforts to secure post-separation counselling and therapy for C run contrary to the applicant’s submissions. C’s views, as shared with and summarized by Rapuch, are based upon events that both pre-date separation, and emanate from the events of November 13, 2023 and beyond. Whether or not C’s views are correct, reasonable, defensible or otherwise, they are nevertheless rooted in C’s lens used to observe the events before, during and after November 13, 2023.

[37] The events of November 13, 2023 seem to be the “last straw” for C, and more likely the proximate cause of the family dysfunction than the respondent’s alleged alienation efforts. The fact that the respondent consents to the reunification therapy if C and Rapuch were in support of such a result is not dispositive of the issue.

[38] With respect to the second factor, the issue is really whether the proposed reunification therapy would be in C’s best interests. Maximum contact with both parents is typically the goal sought to be achieved post-separation. C is obviously a mature minor, and as such her views are typically afforded greater weight than those of a child.

[39] The applicant takes great issue with Rapuch’s evidence, and the applicant believes that C’s refusal to participate in reunification therapy has not been adequately addressed or countered by Rapuch. However, Rapuch’s evidence did not foreclose the possibility of reunification therapy, but merely suggested that in accordance with C’s wishes, reunification therapy commence when C is ready for it to commence. In my view, the issue of mending fences with the applicant is one that definitely exists in C’s world, and is being discussed on a seemingly consistent basis. C’s current view is not necessarily an unreasonable position, although one which is no doubt difficult for the applicant to accept given that there has been no contact between her and C for many months.

[40] Reunification therapy orders are typically made sparingly and must be supported by compelling evidence. The applicant relies upon the decision of McClintock v. Karam, 2017 ONSC 663 in which the Court held that reunification therapy was appropriate for a 13 year old child who had not seen her father for almost four months. In coming to that conclusion, the Court did not make a finding as to whether the case was one of parental alienation or whether the child was asserting her own, legitimate views in the absence of any parental alienation. In fact, the Court did not make a finding in that regard one way or the other.

[41] I believe that at this interim stage, C’s subjective legitimate views are not dispositive, but are important. While I decline to find that there is zero risk of parental alienation on the part of the respondent, the facts in McClintock are quite distinguishable from those on this motion. C has expressed a desire to commence a reunification path when she is emotionally ready to do so. She was not compelled by this Court to attend the July 18, 2024 meeting, but she did (albeit with some additional conditions) and ought to be commended for it.

[42] This Court does not want C to feel that in the face of honouring this Court’s wish that she attend the July 18, 2024 meeting, she ought now to be forced to formally attend the reunification therapy and feel like such a result was due to her approach towards and emotional conclusions from the July 18, 2024 meeting.

[43] On the record before this Court, it a more reasonable result to allow the potential reunification (whether through therapy or otherwise) to proceed on an organic basis mindful of C’s views and concerns. Given the lack of empirical evidence for reunification therapy, there is no “one-size-fits-all” approach to such therapy. Treatment must be individualized to each family. Making therapeutic decisions about reunification interventions that promote the best interests of a child must be focused upon the least detrimental alternative to the child. Reunification therapy is more likely to be beneficial when both parents are involved, and the child is willing to participate.

[44] While there is jurisprudence allowing the Court to issue a strong judicial “recommendation” that parties participate in reunification therapy, I have already expressed such a recommendation in my June 13, 2024 Endorsement. As C is unlikely to voluntarily participate in reunification therapy at this time, I am not prepared to make a formal order to that effect.

[45] I do sincerely hope that C will continue to make the necessary strides and bridge whatever emotional gaps currently exist towards a process where she can repair her relationship with the applicant. However, at this interim stage, I am not prepared to make the therapeutic order sought and thus dismiss the applicant’s motion without prejudice to her right to renew the motion on new, previously undiscoverable facts.

Costs

[46] As always, I would urge counsel for the parties to exert the necessary efforts and try to resolve the costs of this motion. If those efforts prove unsuccessful, they may serve and file written costs submissions, limited to no more than five pages including a Costs Outline, in accordance with the following schedule:

(a) The respondent shall serve and file his written costs submissions within ten business days of the release of this Endorsement; and (b) The applicant shall serve and file her responding written costs submissions with ten business days of the receipt of the respondent’s written costs submissions.

Diamond J.

Released: August 6, 2024