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| Joanna Radbord |
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| Rachel Birnbaum |
The Court of Appeal for Ontario has ruled that the court has no authority “to delegate its power” to determine custody and access to a third party. (See C.A.M. v. D.M. [Indexed as: M. (A.C.) v. M. (D.)], 67 O.R. (3d) 181 at para. 22; Walton v. Walton [2022] ONCJ 394 at para. 86; Michelon v. Ryder, 2016 ONCJ 327 at para. 7; D.D. v. H.D., [2015] O.J. No. 2959 (Ontario Court of Appeal) at para. 92: “… this court emphatically stated that the court cannot delegate to a third party its power to determine access.”) This is so despite the many children who remain captive to their parents’ ongoing toxic conflicts, pursued without regard to their children’s emotional well-being. We say enough is enough — best interest decisions are about children’s rights and not parent’s rights.
A child-centric approach
We argue that family justice professionals and courts should consider a more nuanced and child-centric approach to appropriate deployment of PC in Ontario. Judges ordering PC are not abandoning their obligation to protect children’s best interests. Rather, the courts recognize that sharing, if not “delegating their authority,” is often aligned with their obligation to protect children’s long-term mental health and well-being.
To date, the court has ordered parents to undertake and engage with mental health professionals, even when opposed by parents. For example, courts have ordered:
- a party to attend counselling;
- both parents attend co-parent coaching;
- mediation;
- a party attend for individual psychological or psychiatric assessment;
- the family to undertake a s. 30 assessment;
- parents direct their child to attend counselling;
- the parties be required to utilize the app Our Family Wizard, possibly under supervision.
In many ways, then, the professional assistance included within the role of PC can be ordered, generally by other names.
Similar approaches can be found in the Court of Appeal for Ontario’s decision in M.P.M. v. A.L.M. [2021] O.J. No. 3577, which, at para. 57, ordered a “brief reviewing hearing in one year’s time” to incentivize compliance with counselling and therapy orders. Similarly, the Court of Appeal approved a trial judge remaining seized following a reversal of custody, “to review the progress of the children’s relationship with their father and to gradually increase their mother’s access.” At the same time, the court ordered that it would not undertake a review of the existing parenting terms until the mother “engage[s] and meaningfully participate[s] in therapy to gain insight into her alienating behaviour and meaningfully works towards supporting reconciliation between [the father] and the children.”
In R.F. v. J.W. [2021] O.J. No. 3970, the parties agreed to a therapist to “facilitate any and all therapeutic interventions, therapies, and approaches to ensure a balanced relationship as between the children and the parties.” The order terminated other therapy for the children and prohibited further therapy “without it being part of the process undertaken by Ms. Geraldo and specifically recommended by her.” The trial judge ordered she “remain seized of the issue of the therapeutic interventions.”
In this situation, unlike in M.P.M. v. A.L.M, the court directed that there should be ongoing mental health assistance to facilitate parenting time. The courts, with approval from the Court of Appeal, continue to entrust significant responsibility to mental health professionals.
The case law had previously recognized that it was not appropriate to limit a parent-child relationship such that it was allowed to resume only on the say-so of a mental health professional. Now, a court is increasingly willing to cede power to mental health professionals, particularly in the context of parent-child contact problem cases.
Recently, there appears to be a demonstrated willingness in some lower courts to order PC; however, there is no express discussion of a court’s jurisdiction to do so. Some examples of PC being ordered include decisions by Justice E. Llana Nakonechny, in Closner v. Closner [2021] O.J. No. 4726 and in Brennan v. Lander [2020] O.J. No. 2021, at para. 3; by Justice Robert MacLeod in Misiuda v. Misiuda [2021] O.J. No. 4182; by Justice Kelly P. Byrne in M.M. v. E.M. [2020] O.J. No. 402; by Justice Laura E. Fryer in J.M.G. v. L.D.G. [2016] O.J. No. 2537; by Justice David G. Price in D.W. v. G.N.W. 2015 O.J. No. 325; by Justice Thomas Bielby in Splett v. Pearo [2014] O.J. No. 235; by Justice Donald J. Gordon in Busko v. Israel [2018] O.J. No. 5192; by Justice Margaret A. McSorley in Campbell v. Campbell [2017] O.J. No. 3773; by Justice Susan Woodley in Lambert v. Peachman [2016] O.J. No. 6201; by Justice Kofi Barnes in D’Souza v. D’Souza [2016] O.J. No. 551; by Justice Irving W. André in Adeel v. Afzal [2014] O.J. No. 6707; by Justice E. Ria Tzimas in D’Angelo v. Barrett [2014] O.J. No. 5245; and by Justice Francine E. Van Melle in Shotton v. Switzer [2014] O.J. No. 566.
A path forward
Lawyers already know that judges are making orders, without consent, in relation to many of the roles of PC: evaluation, mediation and counselling. To confirm and expand the role of PC, potentially to include a limited arbitral function, lawyers and courts might rely upon: (1) PC as an incremental step forward, (2) parens patriae jurisdiction that allows orders to be made where there is a legislative gap in children’s best interests, (3) children have a statutory, internationally protected right to participate in decisions that impact them, in a sensitive manner, and PC may be the best means to do so in a particular case, (4) a Charter-guaranteed right to have access to appropriate services when facing a threat to the parent-child relationship; (5) the Divorce Act requirement that “family dispute resolution” be attempted for parenting disputes; and (6) to the extent that expansion of PC is a change to the law, the Supreme Court of Canada has called on a culture shift in the courts.
‘Children first’ delegation
Children deserve that we use all available tools at our disposal to advance their best interests. Where a trial judge, after considering all the evidence, finds PC to be in a child’s best interests, it should be incumbent on the court to make the order permitting PC and defining its scope. Under the Ontario Children’s Law Reform Act (CLRA), judges “may make any additional order the court considers necessary and proper in the circumstances” in dealing with parenting issues.
Family law courts are overburdened. Children cannot afford to wait. For many of the most high-conflict cases, the best approach is likely two-pronged: judicial assistance coupled with PC when that is a just, fair and proportionate response to determining children’s best interests. We agree that the court’s obligation and responsibility is to protect children and argue that harnessing the assistance of PC to help children when necessary and appropriate is in the children’s best interests.
Joanna Radbord is a partner at McCarthy Hansen & Company LLP. Rachel Birnbaum is a professor, cross-appointed to childhood and youth studies and social work at King’s University College, Western University. Our paper on this important issue is in review for publication.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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