Court File and Parties

Court File No.: FC173/17 Date: January 31, 2024 Corrected: February 1, 2024 Superior Court of Justice – Ontario Family Court

Re: Adam Michael Cousins, Applicant And: Sarah Rachel Healey, Respondent

Before: SAH J.

Counsel: Rebecca Coyne, for the Applicant David R. S. Pentz, for the Respondent

Heard: December 15, 2023

Corrected Decision: The text of the original decision was corrected on February 1, 2024, and the description of the correction is appended [i].

Endorsement

Overview

[1] There are two motions before the court. The applicant father seeks a declaration that the respondent mother is non-compliant with various provisions of an interim consent order regarding reconciliation therapy. He seeks immediate compliance and a financial penalty imposed for non-compliance.

[2] The applicant father also seeks that this matter be case-managed with the issue of the respondent mother’s compliance to be reviewed within 90 days.

[3] The respondent mother requests that the applicant father’s motion be dismissed and asks for the court to appoint the Office of the Children’s Lawyer (“OCL”).

Background and Litigation History

[4] The parties separated after approximately seven years of marriage. There are two children born from their union, Caitlyn, age 15, and Noah, age 12. Following their 2014 separation, the parties entered into a separation agreement dated December 3, 2015.

[5] Under the agreement, the parties have joint decision-making responsibility for the children, and they primarily resided with the respondent mother.

[6] The separation agreement also provided that the applicant father have parenting time with the children at a minimum of two visits per week. His holiday parenting time with the children was to be determined taking into consideration the ages and stages of development of the children, his bond with them and his ability to care for them.

[7] In September 2017, before the unification of the Family Court in the Superior Court of Justice in St Thomas, the applicant father issued an application in the Ontario Court of Justice requesting regular, unsupervised parenting time every other weekend and one weekday, inclusive of reasonable holiday time. The same application is still before the court.

[8] The OCL intervened. In an interim report dated November 9, 2018, the OCL recommended supervised parenting time between the applicant father and the children, to occur twice per week, for two hours, at the Elgin-Merrymount Access Centre.

[9] The report also recommended the children attend counselling to address their anxiety and feelings around parenting time and that the applicant father and the children begin reunification counselling when recommended by the counsellor. It was also recommended that both parties work with a professional to determine how parenting time could be expanded. The OCL invited the parties to contact them to assess the situation after six months, if on consent.

[10] One year after the OCL report, counselling had not yet started. The respondent mother claims it is because of the lengthy waitlist, the applicant father claims that she did not act on the recommendations set out in the interim report.

[11] The OCL prepared a discontinued report, approximately one year after the interim report. The discontinued report set out:

1. No information was filed to suggest the respondent mother encouraged a relationship between the children and their father;
2. Parenting time continues to be slotted around the children’s activities, and has not progressed in any way;
3. Parenting time continues to be changed due to activities, and counselling has been cancelled and changed by the respondent mother on several occasions;
4. The situation continues to send messages to the children that parenting time with their father is not important or a priority;
5. There is no objective reason why the children would be so uncomfortable and resistant to see their father; it must be assumed that the reluctance is due to some influence by the respondent mother, whether intentional or not; and
6. There is little evidence to show that the respondent mother has worked through her own feelings of anger and resentment about the situation, and it was recommended that she obtain her own private counselling to do so.

[12] In December 2019, an order was made requiring the applicant mother to make parenting time and counselling for the children a priority and not to cancel appointments for extracurricular activities. She was further ordered to not schedule extracurricular activities for herself or the children in the interest of facilitating therapy and additional parenting time visits. The court further ordered the respondent mother and the children to attend therapy with Ms. McIntyre each Thursday at 5:00 p.m., commencing December 12, 2019. The respondent mother was also ordered to modify parenting time as recommended by the counsellor and to follow any of their recommendations.

[13] Prior to the pandemic, the applicant father was having his parenting time at the library. Virtual parenting time followed, after the start of the pandemic, and occurred once weekly, alternating Mondays and Wednesdays.

[14] After Covid restrictions were lifted, the children did not resume counselling with Ms. McIntyre as she accepted the children’s refusal to proceed.

[15] In February 2022, on a motion brought by the respondent mother, the court ordered the further involvement of the OCL.

[16] The OCL declined to become involved, citing limited resources. The OCL also noted that they might consider an update at some time in the future if the children do get into counselling on a regular basis, and if the respondent mother takes them with regularity.

[17] The parties then engaged in a series of case conferences before Justice Campbell in May, July, and August 2022. At these case conferences, several orders were made including an order that the applicant father have parenting time with Noah on an interim basis twice a week for an hour and a half when attending his extracurricular activities, and that the respondent mother use her best efforts to ensure Caitlyn attend at those times and engaged with her father.

[18] An order was also made to have Paula DeVeto undertake reconciliation counselling, with the request that the draft order be forwarded to Ms. DeVeto for review.

[19] Justice Campbell’s endorsement reads: “the parties have come to an agreement for parenting time while Ms. DeVeto becomes involved.”

[20] When back before Justice Campbell in October 2022, the parties entered into a consent order (“2022 consent order”). The relevant provisions of the 2022 consent order are as follows:

1. The Applicant shall have parenting time with the children, Caitlyn Paige Cousins, born November 9, 2008 (“Caitlyn”) and Noah Reid Cousins born April 21, 2011 (“Noah) (collectively “the children”) in accordance with the following schedule: a) Week One: Tuesday from 4:30pm – 7:00pm and Saturday 12:00pm – 4:00pm; b) Week Two: Tuesday from 4:30pm – 7:00pm and Sunday 12:00pm – 4:00pm; c) Each Week: Thursday video chat from 4:30pm – 5:00 pm; d) Such further and other times that the parties may agree to in advance in writing.
2. The Applicant and the Respondent shall forthwith take all necessary steps defined by Paula DeVeto to become a participant in, and she shall thereafter attend, participate in, and fully complete, the course of family reconciliation therapy with the children Caitlyn Paige Cousins, born November 9, 2008 (“Caitlyn”) and Noah Reid Cousins born April 21, 2011 (“Noah) (collectively “the children”) and the Applicant (or either of them, as determined by Paula DeVeto) on such terms as are recommended by Paula DeVeto.
3. The Applicant and the Respondent shall each exercise their full parental authority over Caitlyn and Noah, which includes, but is not limited to, taking definitive, reasonable and necessary steps to require each of them to attend, participate in, and fully complete, the course of family reconciliation therapy.
4. The Applicant and the Respondent shall exercise their full parental authority over Caitlyn and Noah which including, but not limited to, taking definitive, reasonable, and necessary steps to facilitate parenting time between the Applicant and Caitlyn and Noah.
5. Subject to recommendation made by Paula De Veto and/or further written agreement of the parties, Ms. Healy [sic] will drive the children to a location arranged between the parties for the children’s time with the Applicant. She will leave the children in the care of the Applicant and she shall not remain present for the Applicant’s scheduled parenting time.

Issues for Determination

[21] The alleged non-compliance is relative to:

• Family reconciliation therapy on terms as recommended by Paula DeVeto; and
• The respondent mother exercising full parental authority over Caitlyn and Noah in relation to family reconciliation therapy and to facilitate parenting time with the applicant father.

[22] There is no dispute that a triggering event has occurred that would allow consideration of r. 1(8).

[23] Therefore, the focus of the court is whether it is appropriate to exercise discretion in favour of the respondent mother. If not, what are the appropriate remedy(ies)?

Analysis

Applicable Legal Principles Regarding r. 1(8)

[24] The onus is on the non-compliant party to show, on a balance of probabilities, why the subrule should not apply: Gordon v. Starr, 2007 ONSC 35527, 42 R.F.L. (6th) 366 (S.C.J.).

[25] As cited by Conlan J. in C.J. v. E.J., 2021 ONSC 4853, at para. 6, Starr J. wrote in Price v. Putman, 2018 ONCJ 86, at paras. 36 and 37, that:

discretion in favour of the noncompliant party will only be granted in exceptional circumstances. Put another way, it would take an extraordinary event to cause a court to exercise its discretion not to apply the rule in favour of the complainant.

[Additionally,] in deciding whether or not to exercise its discretion in favour of a non-complying party the court ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

[Citations omitted.]

Breaches and Respondent Mother’s Rationale/Justification in Favour of Discretion

Position of the parties

[26] The respondent mother and children have not attended reconciliation therapy since May 2023.

[27] The applicant father submits that the mother has stymied and stalled reconciliation therapy numerous times since entering into the 2022 consent order. He claims that the mother has failed to meaningfully engage with therapy, made accusations of abuse for the first time, and raised concerns about proceeding with face-to-face reconciliation therapy when the first meeting was held.

[28] The respondent mother submits that the 2022 consent order has been frustrated due to the breakdown in the relationship between her and the therapist, and the children and the therapist. She alleges that Ms. DeVeto has been critical, biased and prejudicial towards her.

[29] She further submits that the children are no longer willing to attend therapy with Ms. DeVeto for a variety of reasons, including that they felt manipulated, that they are not being listened to, and that they are being forced into face-to-face visits when they are not ready for that contact.

[30] The respondent mother further submits the 2022 consent order is an improper delegation of the court’s power with respect to whether the children should be required to attend unsupervised access with the applicant. Considerable submissions were made regarding the court’s jurisdiction to make therapeutic orders and the application of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

Chronology after 2022 consent order

[31] The parties participated in intake sessions in November and December 2022.

[32] Following the intake sessions, Ms. DeVeto conducted individual counselling with the applicant father and met with the children, with the respondent mother being present at the initial session.

[33] Sessions between Ms. DeVeto and the children continued between March 2023 and May 2023.

[34] In May 2023, the respondent mother changed counsel. In August 2023, the matter was placed on the running trial list of April 15, 2024 and the trial management conference was scheduled for March 18, 2024.

[35] Several affidavits were filed in support of the two motions currently before the court. In addition to her notice of motion seeking the appointment of the OCL, the court reviewed two affidavits dated October 4, 2023 and November 27, 2023, and the applicant father’s affidavit dated October 23, 2023.

[36] For the motion for non-compliance, the court reviewed the following material: (1) the applicant father’s affidavits dated November 13, 2023 and December 3, 2023, (2) the respondent mother’s affidavit dated December 27, 2023, (3) the affidavit of Paul DeVeto dated November 13, 2023 attaching a Family Treatment Intervention Report, (4) the November 9, 2018 affidavit of the OCL clinical investigator attaching the interim OCL report, and (5) the OCL’s affidavit dated December 7, 2019 attaching the discontinued report of the Children’s Lawyer.

[37] Both parties make reference to Ms. DeVeto report dated November 12, 2023.

[38] The respondent mother requests that the court not place significant weight on the report because:

1. It was requested and paid for by the applicant father as part of his litigation and not court-ordered;
2. There has been no cross-examination on the report;
3. The respondent mother disputes findings and sets out in her material her concerns about inaccuracy, bias, and prejudice against her;
4. The report contains a number of unsupported conclusions about the respondent mother and the children’s statements, which are, according to her, inaccurate and biased.

[39] This court will consider Ms. DeVeto’s report with a significant degree of caution, and any portions relied on in this decision will be outlined below.

[40] For reasons to follow, I will not exercise discretion in favour of the respondent mother. She had not demonstrated that an exceptional circumstance or an extraordinary event has occurred to cause a court to exercise its discretion to not apply r. 1(8). In coming to this conclusion, I have taken into account all relevant history in the course of this litigation, which commenced in 2017. I have considered the following evidence.

Health Care Consent Act

[41] The respondent mother suggests the children’s consent should be obtained before requiring them to continue with reconciliation counselling. From my review of the record, the respondent mother did not appear to make this submission when she consented to the 2022 consent order.

[42] Reliance on the Health Care Consent Act, 1996 is not a basis for non-compliance. Courts have historically determined that therapeutic orders are seldom considered treatment under the Health Care Consent Act.

[43] To the extent applicable to this case, I agree with the analysis of Audet J. in Leelaratna v. Leelaratna, 2018 ONSC 5983, where she states at para. 66:

I am of the view 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. While there is no doubt that individual and family counselling, if successful, will have a significantly positive impact on everyone’s health, their goal will usually be to address stress management strategies and inter-relationship management strategies. As such, such therapeutic interventions will not be “health-related” and, if they are, they will usually pose little or no risk of harm. The risk of harm, particularly to children, will often reside in NOT administering them. This being said, the question as to whether a specific therapeutic intervention is a treatment pursuant to section 2 of the HCCA needs to be determined on a case-by-case basis.

[44] However, here the court is not being asked to determine whether the therapeutic intervention agreed upon in October 2022 is to be considered treatment. Further, the court is not being asked to determine whether the court has jurisdiction to make a therapeutic order which it finds to be in the child’s best interests.

[45] The record before me does not suggest that the respondent mother appealed or otherwise moved to set aside or vary the 2022 consent order. In fact, she agreed to all terms, when represented by counsel, including the term providing that she would leave the children in the care of the applicant father, participate in and fully complete the course of family reconciliation therapy with the children on such terms as recommended by Ms. DeVeto.

[46] I do not accept the respondent mother’s argument that discretion should be afforded in her favour based on the application of the Health Care Consent Act. The respondent mother is attempting to backpedal. She is seeking that the court consider an argument that she did not make a year ago when she agreed to participate in, and fully complete, a course of family reunification therapy.

[47] The respondent will not be afforded discretion on this ground.

Chronic delays and lack of prioritization

[48] Back in November 2018, the OCL noted that there is little information that the respondent mother has tried to help facilitate the relationship between the father and the children. The children’s presentation when discussing their father back in 2018 was noted as very concerning. The OCL observed that the respondent mother must begin to encourage a relationship between the children and their father. It was expected that the respondent mother would initiate counselling for the children as soon as possible.

[49] In November 2018, the parties were aware that it was imperative that counselling begin as soon as possible to assist the family in moving forward.

[50] In November 2018, the clinician recommended twice weekly parenting time at a supervised access centre. That supervised access was terminated due to the children’s resistance.

[51] The respondent mother did not resume parenting time and counselling was never started.

[52] As outlined above, the OCL discontinued its involvement after a year had passed with the children not obtaining counselling or any changes to the applicant father’s parenting time. Details of the discontinued report are outlined above.

[53] To summarize, the OCL discontinued its involvement because there was no information to suggest that the respondent mother had encouraged a relationship between the children and their father. The OCL noted that there was little evidence to show the respondent mother had worked through her own feelings of anger and resentment about the situation, and it was recommended that she obtain her own private counselling. The report further noted that the situation continues to send a message to the children that parenting time with their father is not important. In contrast, the applicant father had eight sessions of counselling after receiving the interim OCL report in November 2018.

[54] The relevance of these comments must be considered in conjunction with the respondent mother’s continued conduct.

[55] When the respondent mother finally agreed to counselling for the child Caitlyn, the counselling was delayed. In fact, the first appointment for Caitlyn was delayed because, according to the respondent mother, she made the basketball team. It was expected that she would have games on the same day as she was scheduled to attend counselling during the only available spot.

[56] With the onset of the pandemic, in-person appointments for counselling were cancelled. The counselor did not feel that virtual visits would be appropriate. Counselling was put on hold between March 2020 and April 2021. Counselling for Caitlyn did not occur because Caitlyn was 12 and the counselor wanted to seek the children’s consent for therapy.

[57] Each party in this case has a different version in relation to virtual parenting time. The applicant father suggests that the respondent mother has never been supportive, frequently permits the children to miss calls and refuses to reschedule them.

[58] The respondent mother acknowledged that Caitlyn missed three or four calls due to ongoing conflicts with soccer and basketball. When attempting to reschedule, the record reveals that the respondent mother indicated that she could not reschedule every time one of the children has a conflict. She refused to rearrange a five-minute call every time one of the children “had something come up.” She suggested that they had little free time.

[59] The respondent mother’s conduct is not indicative of an individual who prioritizes the children’s best interests. Prioritizing extracurricular activities over the development of familial relationships precisely describes the concerns expressed in the OCL interim report about the message sent to the children.

[60] The mother’s conduct was addressed at a motion brought by the applicant father on December 6, 2019. Korpan J. ordered the respondent mother to make parenting time and counselling a priority, to not cancel the children’s extracurricular activities and not schedule activities, in order to facilitate therapy and visits.

[61] This order reiterates that OCL’s concerns about the respondent mother’s conduct and does not support her request for discretion.

Graduation

[62] The mother also lacks understanding of her role as parental authority despite her consent to the 2022 order.

[63] An example of the respondent mother’s failure to exercise full parental authority involves the child Caitlyn’s graduation.

[64] The applicant father was only made aware about Caitlyn’s graduation when he requested to reschedule parenting time. In the course of attempting to reschedule, he was casually informed that Caitlyn’s graduation was taking place on a particular day, therefore he would not be able to exercise his parenting time.

[65] The applicant father notes that if he had not pushed to reschedule the virtual parenting time, he would not have known about the child’s graduation. He claims the respondent mother advised him he was not someone Caitlyn chose to give one of her limited tickets.

[66] The respondent mother deposes that Caitlyn had been assigned a certain fixed number of tickets and she had made her wishes known about her father attending.

[67] The respondent mother deposes that she strongly encouraged Caitlyn to think about who to invite but Caitlyn was adamant that she did not want her father to attend. She claimed she did not permit Caitlyn to exclude her father but deposes that, ultimately, it was Caitlyn’s decision.

[68] The respondent mother does not go into detail regarding conversations had with Caitlyn on this issue, what she did to promote or facilitate the respondent father’s attendance, or what if any parental authority was exercised on this issue.

[69] From this, I concluded that no parental authority was exercised, and the respondent mother left decision making solely in the child’s hands.

[70] The respondent mother’s conduct in this regard also factors into the court’s decision to not afford her discretion.

TikTok post

[71] In or around August 2023, Caitlyn publicly posted on TikTok. The post included the following hashtags: #nodad, #mydadleftme, #fatherlesschild. The posts also include the following: “my dad is emotionally manipulative.” In another post, Caitlyn addressed her “never-ending trauma” and states “dad’s [sic] are overrated anyways.”

[72] The record reveals that when this issue was addressed through counsel, a response was not received for approximately two months. The TikTok post remained public for weeks after being brought to the attention of the respondent mother’s counsel.

[73] Interestingly, the August 2023 TikTok post did not express Caitlyn’s displeasure or discomfort with counselling. She did not address the stresses of her meetings with Ms. DeVeto but focused rather on villainizing the father. This does not match the narrative that the respondent mother is attempting to portray.

Basketball game

[74] At the recommendation of Ms. DeVeto, the parties agreed that the children would attend a London Lightning basketball game with Ms. DeVeto and the applicant father. The expressed goal of the attendance was for the children to make an effort to try and enjoy an activity with their father.

[75] Ms. DeVeto made it clear to all parties that the respondent mother needed to reinforce behavioural expectations in that regard.

[76] The children, the applicant father, and Ms. DeVeto attended the London Lightning basketball game on May 7, 2023.

[77] According to the two adults present at the time, the children appeared contemptuous, refused snacks or drinks, did not say thank you or goodbye, and walked slowly to keep their distance. They conveyed their displeasure with their body language and silence.

[78] Ms. DeVeto described the children’s behaviour to both parties and asked the respondent mother what behavioural expectations were set for the children ahead of time. The mother did not reply to Ms. DeVeto, nor did her counsel when the applicant father’s counsel followed up.

[79] The mother later claimed she did encourage the children to enjoy the game to the best of their abilities, to refrain from being on their phones and to not be rude. She deposes that her expectations for the basketball game were conveyed to the children, and that she cannot be responsible for the behaviour of the children when she is not present. She claims that while they were quiet and did not accept food, she did not feel they were behaving badly. She notes that they refrained from being on their phones and did not say anything mean. She claims she did advise Ms. DeVeto of the expectations set.

[80] Following the London Lightning basketball game, the respondent mother discharged her counsel and further failed to comply with the 2022 consent order. The respondent mother took no further steps in relation to therapy, despite the fact that Ms. DeVeto was clear that she was concerned about the impact on the children of further delay.

Other Factors

[81] Additional behaviour considered in the court’s decision to not exercise discretion in favour of the respondent mother includes her permitting the children to refuse to open gifts sent by the applicant father, permitting the children to be rude to their father, and allowing the children to dictate parenting time.

[82] From this conduct, the court concludes the respondent mother believes that she has no role in facilitating a relationship between the children and the applicant father.

[83] The respondent mother has failed to facilitate parenting time with the applicant father to the extent that she did not provide him with the children’s cellphone numbers when requested until after her failure to do so was set out in affidavit material.

[84] The mother also saw it fit to address Caitlyn’s reaction to counselling with professionals other than Ms. DeVeto.

[85] The respondent mother took the child to see a nurse practitioner and her family doctor rather than address Caitlyn’s concerns with the family therapist.

[86] She claims that after each session, the children would get into their vehicle bawling and venting, that they repeatedly expressed how much they hated being at counselling, how it was not helping and that it was only making things worse. The respondent mother deposes that the children felt as though they were not being listened to.

[87] The respondent mother alleges that the two nurse practitioners Caitlyn spoke to were very concerned and stated that it did not sound as though counselling was beneficial for her wellbeing.

[88] With respect to the nurse practitioners, this would not be their call. Further, it is incorrect for the respondent mother to have relied on their conclusion. It would have been more appropriate for the respondent mother to address these concerns with Ms. DeVeto. If the children were finding the sessions to be upsetting, stressful, frustrating and not helpful, the mother should have contacted Ms. DeVeto to determine a solution and potentially change the course of therapy, not cancel therapy outright.

[89] The respondent mother’s decision to address the concerns with other healthcare professionals and rely on what they felt to be best for the children’s wellbeing causes the court serious concerns.

[90] The nurse practitioner felt as though she needed to communicate her concerns and feelings to the counsellor and family members involved.

[91] Despite this notation by the nurse practitioner, the respondent mother did not pursue this avenue. She simply discontinued any form of counselling and the children have not been to see Ms. DeVeto since.

[92] The mother agreed to the counselling process with Ms. DeVeto. In fact, it was her counsel at one point who suggested Ms. DeVeto.

[93] Surely, when the parties agreed to bestow trust in Ms. DeVeto at the time that they consented to the October 2022 order, they presumed that she would know what is best, as a professional.

[94] Now, the respondent mother disagrees with Ms. DeVeto’s opinion that the children’s panic attacks, sleepless nights, diminished appetites and emotional breakdowns are a part of their healing. Her disagreement is not reason to abandon court-ordered reconciliation therapy.

[95] Ms. DeVeto attempted to contact counsel for both parties and requested a three-way virtual call between counsel to discuss these issues. In an email correspondence dated May 29, 2023, Ms. DeVeto impressed upon the parties the requirement to deal with this matter with urgency, expressing her concern about the messaging and impact of further delay with reunification therapy may have on the children.

[96] Rather than trying to solve the issues, the respondent mother simply takes the position that there will be no further steps taken in relation to therapy.

[97] The respondent mother failed to provide an explanation as to why she herself was not attending therapy.

[98] She provides no specific explanation as to why Noah is not attending therapy sessions with Ms. DeVeto.

[99] In her material, the respondent mother states that she gave counselling an “honest effort.” She “encouraged the kids to the best of [her] ability”, she did everything asked of her, the kids were reluctant but did as they were asked.

[100] She does not explain what honest efforts were made, specifically what she did to encourage the children to the best of her ability, or how she claims she did everything that was asked of her. Other than blanket statements made in her defense, there are no specifics, leading the court to conclude that no extraordinary event or exceptional circumstances exist warranting discretion in her favour.

[101] She has failed to demonstrate that she has done all she reasonably can do to ensure compliance with court order.

[102] I recognize that the respondent mother feels that these sessions have been difficult for the children and that the children do not feel they are supported by Ms. DeVeto. It is insufficient for the mother to rely on what the children are saying about refusing to attend for future therapeutic sessions with Ms. DeVeto.

[103] While the respondent mother believes that the children deserve to have their feelings, wants, needs and wishes heard, she cannot flout a court order based on this belief.

[104] “It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means”: Stuyt v. Stuyt, 2009 ONSC 43948, 71 R.F.L (6th) 441 (ON SC), at para. 62. This is not just a parent’s duty to the court, but also to their children: “[i]t is also the role of parents to instill in their children a respect of the law and of legal institutions. A parent who does not do so does a disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life”: Stuyt, at para. 62.

[105] The respondent mother deposes that the children respect her as their mother, but they are their own people with their own thoughts and feelings which are based on the absence and neglect of their father.

[106] The respondent mother has not only failed to fulfill her role as described above, but also failed to instill in the children a respect for the process she agreed to, with the therapist she first suggested.

[107] The court acknowledges that the applicant father is not without his shortcomings.

[108] The applicant father, in his own material, acknowledges that he definitely contributed to the current situation. He acknowledges that he was too passive about the parenting arrangement for too long.

[109] He acknowledges that he should have retained counsel sooner, and that he missed important events. He acknowledges that he stopped sending the children gifts when they were returned unopened by the mother, and he understands through counselling with Ms. DeVeto that those choices were hurtful to the children.

[110] The court also acknowledges that the applicant father missed some of Noah’s house league soccer games despite being encouraged to attend. This may not have assisted the applicant father’s situation.

[111] However, the respondent mother fails to realize that she has played a role in his inability to develop a relationship with the children.

[112] The respondent mother appears to solely fault the applicant father for not developing a relationship with the children.

[113] Now she comes to court requesting that the OCL become involved with her matter, attempting to request that the court afford discretion in her favour.

[114] The respondent mother has not met her onus of establishing r. 1(8) should not apply with respect to her failure to comply with the 2022 consent order in relation to family reconciliation therapy on terms as recommended by Ms. DeVeto or, in relation to exercising full parental authority over the children in relation to family reconciliation therapy and facilitating parenting time with the applicant father.

Appropriate Remedy in Face of Non-compliance

[115] Having found that the respondent mother is non-compliant with para. 2 and 3 of the 2022 consent order, the court must now determine the appropriate remedy.

[116] The applicant father seeks that the respondent mother pay a financial penalty and costs.

[117] Fines or penalties are not explicitly set out as a potential remedy in r. 1(8). The subrule only provides broad discretion to make any order it considers necessary for a just determination of the matter.

[118] As noted by the Court of Appeal in Mantella v. Mantella, 2009 ONCA 194, at para. 23, “[w]ether a fine or penalty can be imposed absent a finding of contempt, and to whom the fine is payable, are novel issues and are important.”

[119] The Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, addressed the issue of imposing penalties under r. 1(8) in the context of a parenting order. In obiter, Paciocco J.A. states:

[51] Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H., 2019 ONCA 919, at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

[52] I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8).

[120] Nordheimer J.A., writing in dissent, found that penalties are only available after a finding of contempt has been made, stating:

[103] The problem with distinguishing between those orders for which jurisdiction can be found in r. 1(8), and those orders for which jurisdiction can only be found in other rules, such as r. 31, is made more difficult in this case for two reasons. One is the language used by the motion judge in her reasons and the other is because of an order that she made in this case in October 2019.[3] The language to which I refer is the motion judge’s use of the word “penalties” in her reasons (see paras. 92, 101). Penalties are generally only available after a finding of contempt has been made. This is clear from the provisions of r. 31, namely r. 31(5)(c), and from the existing authorities: see, e.g., Belcourt v. Charlebois, 2020 ONSC 4124 at paras. 28-32.

[121] Some courts have considered a monetary penalty as costs and order them payable pursuant to r. 1(8): see Price v. Putnam, 2018 ONCJ 86.

[122] Other courts have explicitly ordered a monetary penalty, ordering for example that $500 be paid for each day of non-compliance of a disclosure order: see Granofsky v. Lambersky, 2019 ONSC 3251.

[123] Some courts have viewed an order for costs under r. 1(8)(a) to be limited to reimbursement for legal fees and disbursements: see Shapiro v. Feintuch, 2018 ONSC 6746.

[124] After a thorough review of conflicting caselaw surrounding the appropriateness of monetary penalties under r. 1(8), Price J. found that there must first be a finding of contempt arising from a contempt motion prior to imposing a monetary penalty under r. 1(8): see Macnamara v. Weaver, 2023 ONSC 192.

[125] In his notice of motion, the applicant father seeks the following relief:

2. An Order that the Respondent Sarah Rachel Healey shall pay $1,500 to the Applicant representing a penalty for non-compliance with the Order of Campbell J, dated October 11, 2022.
3. In the alternative, to paragraph 2 above, the Respondent Sarah Rachel Healey shall pay $1,500 to the Applicant representing a penalty for non-compliance with the Order of Campbell J, dated October 11, 2022, which $1,500 the Applicant shall contribute to an RESP for the benefit of the children.

[126] He is very clearly seeking that a monetary penalty be imposed on the respondent mother.

[127] This is an unsettled area of the law to which I offer the following.

[128] Rule 1(8) allows the court to “deal with” the failure to obey an order. This allows the court the ability to control its own case management process. This to me means imposing a monetary consequence.

[129] Consequences permitted under the subrule include limiting a party’s ability to obtain any other order from the court and striking their pleadings. These consequences can be far more damaging to litigants than ordering that a sum of money be paid.

[130] Whether called a penalty or fine, I view the purpose of the payment is to incentivize compliance with court orders and to signal to the offending party that the court will not tolerate non-compliance, in other words, to do what is necessary to achieve enforcement.

[131] This type of remedy provides for an efficient and effective consequence to the party who failed to comply with the court order.

[132] The quantum sought by the applicant father, $1,500, is proportionate to the non-compliance and an order shall issue in accordance with para. 2 of the applicant father’s notice of motion. This court further orders that the respondent mother immediately comply with the 2022 consent order.

[133] Perhaps more important than payment of money, is the request for future case management of this file to monitor the respondent mother’s compliance.

[134] This file has been ongoing since 2017. The pandemic did not assist the parties, but there are other delays within the parties’ control that got the family to this point.

[135] I do not disagree that judicial oversight will be helpful. Before suggesting that a case management judge be appointed, it is imperative for the parties to understand the function and role of the judge.

[136] To consider the request and set parameters of the role of a case management judge, the parties are requested to attend before me on March 8, 2024, at 3:30 p.m. (virtually).

[137] Before the return date, it is expected that the respondent mother will contact Ms. DeVeto to discuss her concerns and the parties will obtain a list of recommendations to move forward given the children’s hiatus from counselling and current presentation.

[138] It is expected that a path moving forward will be determined on the return date.

Request for OCL

[139] In February 2022, the respondent mother requested that the OCL become involved. Price J. requested the OCL’s involvement, however the OCL declined to become involved, stating that they might consider doing an update at some time in the future, only if the children do get into counselling on a regular basis and if the mother takes them regularly.

[140] On the record before me, this has not occurred.

[141] Other than to suggest that the children’s views and preferences should be considered and that their voice will be heard through the OCL, the mother has not addressed the OCL’s refusal to become involved in April 2022.

[142] This matter is set for trial in a number of months. The appointment of the OCL could delay the progress of this matter being trial ready. This delay is not beneficial for the children.

[143] The children’s advanced age is a factor that this court considers relevant as the window to attempt to address the estrangement between the children and their father is slowly closing.

[144] It is possible for the children’s views and preferences to be communicated to the court by means other than the OCL involvement. For example, Ms. DeVeto may also be in a position to advise the court of their expressed views and preferences.

[145] The children have expressed a strong preference to not have parenting time with the applicant father. The question of what potential remedies are available for this family requires careful consideration. The OCL would not be in a position to offer this to the court.

[146] The respondent mother’s motion shall be dismissed.

Costs

[147] The parties agreed that costs in the sum of $4,000, inclusive of HST and disbursements, should be awarded to the successful party.

[148] Accordingly, the respondent mother shall pay to the applicant father costs of this motion in the amount of $4,000, inclusive of HST and disbursements, payable within 30 days.

“Justice K. Sah” The Honourable Madam Justice K. Sah Released: January 31, 2024

Correction Notice [i]

• page 1, applicant’s counsel’s name – “David R. S. Pentz” was corrected to read “Rebecca Coyne”
• page 1, respondent’s counsel’s name – “Rebecca Coyne” was corrected to read “David R. S. Pentz”