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| Joanna Radbord |
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| Rachel Birnbaum |
Many people have spoken out about the benefits of parent-child co-ordination. While lawyers are generally aware of the benefits to PC, they do not recognize them as a priority. do not address the elephant in the room — PC is Only Children whose parents agree that they will work with a parenting coach are eligible.
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 para. 86; Michelon v. Ryder2016 ONCJ 327, 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
Family justice professionals and courts need to consider a more child-centric and nuanced approach when determining the 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.
Until now, the court has ordered parents, regardless of their opposition, to engage in mental health care. Courts have, for example, ordered:
- A party that wishes to attend counselling
- Both parents participate in co-parent coaching
- mediation;
- A party can attend for an individual psychological assessment or psychiatric evaluation.
- The family will be required to complete a s.30 assessment.
- Counselling is recommended by parents to their child.
- Parties may be required to use Our Family Wizard app, possibly with supervision.
Professional assistance is included in the role of PC in many ways. can order, usually by another name.
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, that, 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] Meaningfully participate[s] Therapy to help her understand her alienating behavior and work towards reconciliation [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 such a situation, it is not like in M.P.M. v. A.L.MThe court ruled that parents should receive ongoing mental health care to enable them to enjoy parenting time. With the approval of the Court of Appeal courts continue to entrust substantial responsibility to mental healthcare professionals.
The case law previously stated that it was inappropriate to limit a parent/child relationship so that it could be resumed only at the request of a mental-health professional. A court is more willing to give power to mental health professionals in cases involving parent-child contact problems.
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. Justice E. Llana Nakonechny has made some examples of PC being ordered. Closner v. Closner [2021] O.J. No. No. Brennan v. Lander [2020] O.J. No. 2021, at para. 2021, at para. Misiuda v. Misiuda [2021] O.J. No. No. M.M. v. E.M. [2020] O.J. No. No. J.M.G. v. L.D.G. [2016] O.J. No. 2537; Justice David G. Price D.W. v. G.N.W. 2015 O.J. No. 325; Justice Thomas Bielby Splett v. Pearo [2014] O.J. No. 235; Justice Donald J. Gordon Busko v. Israel [2018] O.J. No. No. Campbell v. Campbell [2017] O.J. No. No. Lambert v. Peachman [2016] O.J. No. 6201; Justice Kofi Barnes D’Souza v. D’Souza [2016] O.J. No. 551; by Justice Irving W. André in Adeel v. Afzal [2014] O.J. No. 6707; Justice E. Ria Tzimas D’Angelo v. Barrett [2014] O.J. No. No. Shotton v. Switzer [2014] O.J. No. 566.
Forward
Lawyers know that judges make orders without consent regarding many of the PC roles: counselling, mediation, evaluation. In order to expand and confirm the role of PC and possibly include a limited arbitral function in future, courts and lawyers might look at (1) PC as an incremental step, (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 are entitled to the best possible care and support. 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. 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 overwhelmed. Children can’t 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, a partner at McCarthy Hansen & Company LLP. Rachel Birnbaum is a professor. She has been cross-appointed to child and youth studies as well as social work. King’s University College, Western University. The paper is currently under review and will be published.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s DailyLexisNexis Canada or any of their affiliates. This article is intended for informational purposes only and should not be construed as legal advice.
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