



WARNING

The child in this case is the subject of proceedings under the
Child,
    Youth and Family Services Act, 2017
. This judgment is subject to
    subsections 87(8) and 87(9) of this legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the consequences of
    failure to comply, read as follows:

87
(8)
Prohibition re
    identifying child
 No person shall publish or make public information
    that has the effect of identifying a child who is a witness at or a participant
    in a hearing or the subject of a proceeding, or the childs parent or foster
    parent or a member of the childs family.

(9)
Prohibition re
    identifying person charged
 The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. C.H., 2019 ONCA 764

DATE: 20190930

DOCKET: C66170

Pardu, Paciocco and Zarnett
    JJ.A.

BETWEEN

A.M.

Applicant (Respondent)

and

C.H.

Respondent (Appellant)

John Phillips and Julia Tremain, for
    the appellant

Brian Ludmer, for the respondent

Catherine Bellinger and Suzanne Stern, for the
    Office of the Childrens Lawyer

Heard: August 14, 2019

On appeal from the judgment of Justice Paul
    W. Nicholson of the Superior Court of Justice, dated October 30, 2018 with
    reasons reported at 2018 ONSC 6472.

Pardu J.A.:

[1]

B., a 14-year-old boy, had been showing
    increasing resistance to visits with his father. The trial judge concluded that
    the mother systematically and successfully poisoned the childs relationship with
    his father. The mother was clearly uninterested in participating in therapy with
    a view to encouraging the child to reconcile with his father.

[2]

The trial judge concluded that the childs long-term
    best interests favoured a reversal of custody and a suspension of access,
    intended to be time-limited, to the mother and her allies, in the hopes that
    the father and son could achieve some rapprochement. Accordingly, by judgment
    dated October 30, 2018, the trial judge ordered an immediate custody reversal
    and prohibited contact between the child and his mother and siblings for six months,
    with custody and access to be reviewed at the end of the six-month period,
    subject to certain conditions. In his reasons on motion dated January 18, 2019,
    the trial judge further ordered no contact between the child and the mothers
    extended family.

Issues

[3]

None of the parties dispute the trial judges
    factual findings. However, the mother, the appellant, and the Office of the
    Childrens Lawyer (OCL), advocating for the boys wishes, argue the trial
    judges order (contained in the October 30, 2018 decision) be set aside because:

1.

The trial judge improperly applied the best interests of the child
    test by:

a)

Failing
    to consider the potentially catastrophic consequences of separating the child
    from his mother;

b)

Overemphasizing the mothers bad conduct; and

c)

Failing to give effect to the childs wishes.

2.

The trial judge erred in imposing a reversal of custody because:

a)

The
    mother could not have anticipated it would have been ordered;

b)

There was no expert evidence about the likely effects of such a
    remedy on the child; and

c)

There was no therapeutic support in place to guide the transition.

3.

The trial judge improperly delegated decision-making
    power, because he made review of custody and access provisions contingent on
    reports from therapists and whether the child had meaningfully engaged in
    therapy.

4.

The trial judge erred in ordering the child to
    participate in reconciliation therapy without his consent to treatment, as
    contemplated by the
Health Care Consent Act
,
1996
, S.O. 1996,
    c. 2, Sched. A (
HCCA
).

[4]

These are issues of mixed fact and law. Absent
    palpable and overriding error, this court should not intervene. Specifically, as
    this court has reiterated many times, an appeal court must not retry a custody
    case. Instead, this court must approach the appeal with considerable respect
    for the task facing a trial judge in difficult family law cases, especially
    those involving custody and access issues:
C.S. v. M.S.,
2010
    ONCA 196, 262 O.A.C. 225, at para. 4.
As stated in
Van de
    Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13:

Custody and access decisions are inherently
    exercises in discretion. Case by case consideration of the unique circumstances
    of each child is the hallmark of the process. This discretion vested in the
    trial judge enables a balanced evaluation of the best interests of the child
    and permits courts to respond to the spectrum of factors which can both
    positively and negatively affect a child.

[5]

The trial judge has not made any palpable or
    overriding errors. His reasons are thorough, cogent, and owed considerable
    deference. Accordingly, I would not give effect to any of the mother or OCLs
    arguments and would dismiss the appeal.

Family history and factual
    findings

[6]

Since there is no contest about the trial
    judges factual findings, I summarize the family history relying on those
    findings.

[7]

The parties married on April 25, 1998, separated
    June 28, 2014, and divorced on April 24, 2017. There are three children of the
    marriage. B. is the youngest child and the only child subject to these
    proceedings.

[8]

In the summer of 2014, the mother unilaterally
    and surreptitiously moved the childrens residence to Guelph from Toronto. She
    was ordered to return the childrens residence to Toronto and did so on
    September 1, 2014. The same order awarded the father access on Sundays from
    9:00 a.m. to 9:00 p.m. and on Wednesday evenings.

[9]

The parties resolved their financial issues by
    order of September 14, 2016.

[10]

By October 2016, the fathers access was reduced
    to 45-60 minutes on Sundays when the children would have breakfast with him at
    a donut shop.

[11]

The child has consistently stated that he does
    not enjoy the visits and does not want them to continue. He refused to engage
    with his father in any meaningful way during the visits.

[12]

The mothers efforts to eliminate the father
    from the childrens lives began well before separation, as the trial judge
    noted:

[26] The Applicant Father testified that in
    the years prior to separation, starting in 2010, the Respondent Mother began
    criticizing the Applicant Father in front of the children for not making enough
    money. In front of the children she also said he could not wash dishes or fold
    laundry properly. The situation worsened in 2012, when the maternal grandmother
    started to spend two to four days per week at the family home. She joined in
    the criticism of the Applicant Fathers inadequacies in providing for the
    family or helping with household duties in front of the children. The incessant
    nattering often ended with the Applicant Father and Respondent Mother engaging
    in yelling and screaming at each other. The Applicant Father testified that he
    would often end these arguments by leaving the matrimonial home. When he
    returned, the Respondent Mother had locked the door and he had to plead for 15
    minutes with the children to let him in. This was a humiliating experience for
    him.

[27] Starting in 2012, the Respondent Mother
    prohibited the Applicant Father from driving the children to school. The
    Respondent Mother and children would often visit the Respondent Mothers family
    farm for stretches of time without the applicant Father. The Respondent Mother
    and the children began to impose rules on the Applicant Father in the home. He
    was not permitted to eat with them at the table. He was not permitted to sit in
    the family room with the children as they watched television. The children told
    him to leave and the Respondent Mother did not intervene. He was not permitted
    to drive the children to their doctors appointments. He was not permitted to
    wish the children goodnight. He was not permitted to enter the youngest child, [B.]s,
    room.

[28] The Respondent Mother, according to the
    Applicant Fathers evidence, told him in these years prior to the separation
    that the children did not like him and did not need him.

[13]

The social worker retained to convey the childs
    wishes reported that the mothers strongly negative feelings towards the father
    had contributed to the childs wish to discontinue visits with his father. The
    mother transmitted verbal and non-verbal communication to the children that
    revealed her disdain for the father and her disapproval of his parenting. Similarly,
    the trial judge found that mother was averse to the father playing any role in
    the childs life:

[163] The Respondent Mother does not hide the
    fact that she sees no benefit to the child having a relationship with the Applicant
    Father. She moved the child away in an effort to limit that relationship. She
    has poisoned the child against the Applicant Father. She admits that she cannot
    co-parent with the Applicant Father.

[14]

The trial judge also found that the child showed
    behaviour suggesting that the mother had influenced the childs resistance to a
    relationship with the father:

·

Views of parents one-sided, all good or all bad;
    idealizes one parent and devalues the other: [the child] is unable to
    articulate any good memories of time with his father and/or good qualities of
    his father.

·

Vicious vilification of target parent; campaign
    of hatred: [the child] expresses hatred openly toward his father.

·

Trivial, false and irrational reasons to justify
    hatred: [the child]s hatred is based on allegations that are without merit.
    There is no evidence to corroborate allegations of extensive physical abuse, or
    of bad driving, or of an infested Matrimonial Home.

·

Reactions and perceptions unjustified or
    disproportionate to parents behaviours: [the child]s insistence on short
    visits at a library and refusal to attend at the Matrimonial Home are
    irrational and unjustified.

·

No guilt or ambivalence regarding malicious
    treatment, hatred, et cetera: [the child] believes he is justified in holding
    onto his hatred toward his father.

·

A stronger, but not necessarily healthy,
    psychological bond with alienating parent than with rejected parent: [the child]
    has no bond with his father. He is closer to his mother, but is showing signs
    of an unhealthy attachment, becoming violent toward his mother.

·

Denial of hope for reconciliation; no
    acknowledgement of desire for reconciliation: [the child] clearly articulated
    to several witnesses that he had no desire to participate in any counselling
    with a view to reconciliation.

[15]

He later concluded that the mother had displayed
    behaviour tending to undermine the childs relationship with his father:

[170] Regarding the alienating parent
    behaviours, I find that the Respondent Mother displays the following:

·

Allows and insists that child makes decisions
    about contact.

·

Sets few limits or is rigid about routines,
    rules and expectations.

·

Refuses to speak directly to parent; refuses to
    be in same room or close proximity; does not let target parent come to door to
    pick up child.

·

No concern for missed visits with other parent.

·

Makes statements and then denies what was said.

·

Body language and non-verbal communication
    reveals lack of interest, disdain and disapproval.

·

Rejected parent is discouraged or refused
    permission to attend school events and activities.

·

Does not believe that child has any need for
    relationship with other parent.

·

Portrays other parent as dangerous, may
    inconsistently act fearful of other parent in front of child.

·

Exaggerates negative attributes of other parent,
    and omits anything positive.

·

Delusional false statements repeated to child;
    distorts history and other parents participation in the childs life; claims
    other parent has totally changed since separation.

·

Projection of own thoughts, feelings and
    behaviours onto the other parent.

·

Does not correct childs rude, defiant and/or
    omnipotent behavior directed towards the other parent, but would never permit
    child to do this with others.

·

Convinced of harm, when there is no evidence.

·

False or fabricated allegations of sexual,
    physical and/or emotional abuse.

·

Denigrates and exaggerates flaws of rejected
    parent to child.

·

Extreme lack of courtesy to rejected parent.

·

Relocation for minor reasons and with little
    concern for effects on child.

[16]

For example, a mouse was found in an unattached
    garage shared with neighbor. The mother transformed this into an allegation
    that ants and rats infested the former matrimonial home, occupied by the father.
    She used this as an excuse for violating court orders regarding the childrens
    visits to the fathers home.

[17]

The trial judge concluded that the childs
    behaviour was not a justifiable response to poor parental behaviour by the
    father:

[176] There is no doubt that the Applicant
    Father has struggled to successfully communicate with the children for many
    years. However, I do not find that his conduct played a part in damaging the
    children. In other words, his conduct did not constitute justified
    estrangement. Because of the poisoning by the Respondent Mother of the children,
    they wanted nothing to do with the Applicant Father, but his shortcomings were
    not the issue. Issues identified by the children (for example his driving, ants
    and rats in his house, and physical abuse) were not grounded in reality. They
    were figments planted by the Respondent Mother or created by the children
    themselves. This is not a hybrid situation. It is a unilateral, deliberate and
    successful alienation by the Respondent mother alone.

[177] The alienation had been completed well
    before the separation. The OCL did not observe undue influence by the Respondent
    Mother recently because she did not need to continue the influence once
    alienation was a
fait accompli
. The evidence outlined earlier of the
    Respondent Mothers and childrens demeaning attitude and bitterness toward the
    Applicant Father for two years prior to separation (not permitting him to eat
    with the family or watch TV with them) supports this conclusion.

[18]

The father attempted to engage in reconciliation
    therapy with his son and Marcie Goldhar, a social worker. The mother was unable
    to act in a way consistent with reconciling the father and the child. Ms.
    Goldhar reported that further similar efforts at outpatient therapy were
    unlikely to be successful unless circumstances changed. The trial judge
    concluded that if the child was left with the mother, both she and the child likely
    would not comply with any order for therapy or attempts at reconciliation. In
    fact, the trial judge expected the mother and child may completely disobey any
    access order he made.

[19]

By the end of the trial, the mother and the
    child both took the position that there should be no contact with father, or in
    the alternative, minimal contact.

[20]

The trial judge rejected the possibility of
    leaving the child with the mother. He characterized her behaviour as amounting
    to emotional abuse, which would continue and permanently sever any relationship
    between the child and his father.

[21]

He also rejected the possibility of leaving the
    child with the mother with an order for therapy, on the ground the mother would
    not participate.

[22]

There was no third party proposed to take charge
    of the child.

[23]

The trial judge concluded that the long-term
    best interests of the child required placing the child with the father and
    suspending the mothers contact with the child. He determined that the
    potential long-term detrimental impact of the childs severed relationship with
    his father far outweighed the short-term difficulties of the custody reversal
    and no-contact order.

Analysis

1.

Did the trial judge improperly apply the best
    interests of the child test?

[24]

The mother and OCL suggest the trial judge
    improperly applied the best interests of the child test. Their arguments mainly
    focused on how the trial judge failed to consider the potentially catastrophic
    consequences of custody reversal for the child, overemphasized the mothers bad
    conduct, and failed to give the childs wishes any weight. However, the mother
    and OCL do not dispute any of the factual findings that informed the best
    interests of the child analysis. It is thus difficult to challenge the trial
    judges discretionary weighing of the different factors.

[25]

The trial judge explicitly considered the
    childs ties to his mother and the short-term disruption that would result from
    a transfer of custody to the father. The child was having difficulties while
    living with his mother. He had assaulted her. The mother struggled to meet the
    childs educational needs. While the child had lived almost exclusively with
    the mother for four years, the trial judge did not consider this a stable home
    environment, due to the mothers inadequate and emotionally abusive parenting.
    Accordingly, trial judge concluded:

[167]  I
    have no doubt that [the child] will initially struggle tremendously with the
    order I am making. However, continuing with the status quo in my view will not
    only result in a termination of the childs relationship with the Applicant
    Father but it will be detrimental to his emotional development in the long-term
    to continue to be exposed to the destructive parenting of the Respondent
    Mother. The long-term detrimental impact on the child of a permanently severed
    relationship with his father and ongoing exposure to the substandard parenting
    of the Respondent Mother far outweighs the emotionally challenging but
    temporary adjustment to living with the Applicant Father and short-term
    difficulties of having no contact with the Respondent Mother
.

[26]

The mothers conduct was profoundly harmful to
    the child and contrary to the childs best interests. The mothers conduct was
    highly relevant, and the trial judge did not err in giving it the importance he
    did.

[27]

The trial judge also found that the child had
    been poisoned against his father and his wishes were not independent. Absent a
    challenge to this finding, the trial judge was entitled to put no weight on the
    childs wishes. The trial judge noted further he would not abandon the courts
    role of determining the best interests of the child just because the child will
    do what he wishes in any event. Instead, his goal was to fashion an order that
    will prevent [the child] from voting with his feet: at para. 153.

[28]

The trial judges conclusions were reasonably available
    on the evidence and are entitled to deference. There is no basis to intervene.

2.

Did the trial judge err in imposing a reversal
    of custody with a no-contact order?

[29]

The mother suggests the remedy was extreme and
    she had no notice of it. However, the father explicitly claimed sole custody
    as an alternative claim to division of parenting time with detailed conditions.
    The mothers conduct and its effect on the child was front and center in the
    fathers pleadings. Sometimes warring parents lose sight of their childrens
    best interests. Under such circumstances, no one should be surprised if the
    trial judge fashions a parenting regime which is not in the precise terms
    sought by either party.

[30]

The mother and OCL also submit that expert
    evidence about the effects of the remedy on the child, as well as therapeutic
    supports, was necessary before imposing such an extreme remedy.

[31]

In finding that the mother alienated the child
    from the father, the trial judge was not purporting to make a psychiatric
    diagnosis of any syndrome or condition. Rather, he was making factual findings
    about what happened in this family. This is the stuff of which custody trials
    are made, and as conceded, no expert opinion was required to enable him to do
    so.

[32]

Those factual findings logically led to certain
    remedies being appropriate or not. The trial judge did not need expert evidence
    before choosing the remedy that was in the best interests of the child.

[33]

Further, judges deciding custody cases do so in
    places as diverse as Cochrane, Ontario and downtown Toronto. It cannot be
    assumed that comprehensive parenting capacity assessments are universally
    available or affordable. Even competent assessors may not have the luxury of
    lengthy time to evaluate family dynamics and appropriate remedies.

[34]

This was an 11-day trial. The trial judge had
    the full opportunity to assess the parties in examination in chief and in cross
    examination, and to assess the reports of the counsellors who had worked with
    the family and the evidence of other witnesses. No one else had that same
    opportunity, which equipped the judge to decide what remedy promoted the best
    interests of the child.

[35]

It is noteworthy that in circumstances similar
    to these, this court upheld a trial judges decision transferring custody
    because of parental alienation, without expert evidence on that issue:
Fiorito
    v. Wiggins
, 2015 ONCA 729.
[1]

[36]

Some expert assessments may be very helpful to a
    trial judge, but they are not a prerequisite to making the order the trial
    judge thinks is in the childs best interests, based on all of the evidence at
    the end of the trial. In fact, the trial judge is obliged to make that order,
    regardless of whether expert evidence is adduced.

[37]

There is also no legal requirement for
    therapeutic support when custody reversal is contemplated, though it might be
    helpful in some cases. Here, it would be of doubtful utility, given the
    mothers refusal to participate in that process.

[38]

The trial judge had few choices. The mother and
    the child were unwilling to participate in reconciliation therapy on an
    outpatient basis. If the child remained with his mother, it was virtually
    certain that the child would lose any chance for a relationship with his father,
    who was a reasonably competent parent.

[39]

The clear evidence about risks to the child if
    he stayed with his mother justified a change in custody and the no-contact
    order. The trial judge chose this remedy to promote the childs long-term best
    interests, not to punish the mother. There is no basis to intervene.

3.

Did the trial judge improperly delegate
    decision-making power to therapists?

[40]

The trial judge hoped that six months would
    allow for a beginning of a rapprochement between the child and his father. If
    the mother and child had supported this plan, it is likely that the child would
    have then been returned to his mothers care, if that remained his wish, with
    access having been solidly established with the father. I see no error in the
    trial judge setting a target date to assess how the process was unfolding.

[41]

It is true the trial judge stated that review of
    the custody and access provisions cannot be undertaken until [the child] has
    meaningfully engaged with therapy. Yet, the trial judge also noted that the
    court
will
review the custody and access
    provisions in six months and the specific review date will not be set until
the court is satisfied
said review is appropriate based
    upon the reports from the therapists (emphasis added). The therapists were to
    submit their reports by March 1, 2019, at which point trial judge, not the
    therapists, retained ultimate authority to set a review date.

[42]

The trial judge did not foreclose the parties
    from asking him to revisit the arrangement if there had been a change in
    circumstances. In fact, the mother moved twice before the trial judge, seeking
    access first on January 9, 2019 and then again on May 28, 2019. The trial judge
    heard both motions on the merits and did not impose any pre-condition to the
    mothers ability to bring the motions.

[43]

Accordingly, there was no improper delegation of
    decision-making power.

4.

Did the trial judge err by ordering the child to
    participate in reconciliation therapy without the childs consent, as
    contemplated by the
HCCA
?

[44]

In his judgment of October 30, 2018, the trial
    judge ordered that the changed custody regime would not be reviewed until:

·

The father and the child took steps to engage
    and meaningfully participate in supportive reconciliation therapy with either
    Carol Jane Parker or Marcie Goldhar. The father and the child were to follow
    the therapists recommendations.

·

The mother engaged and meaningfully participated
    in therapy to gain insight into her alienating behaviour and work towards
    supporting reconciliation between the father and his son.

[45]

The judgment of October 30, 2018, which is the
    order under appeal, does not directly order the child or the mother to
    participate in therapy. Rather, it sets participation in therapy as a prerequisite
    to the fixed date review of the change in custody. If the child or the mother
    refused to participate in the therapeutic process, they would lose the
    opportunity to have a fixed date review of the change in custody, without the
    need to show a change of circumstances. In that sense, the order made still
    left some scope for choice on their part as to participation in the therapy and
    the question of forcing treatment on an unwilling participant does not directly
    arise. This would be sufficient to dismiss this ground of appeal.

[46]

In later orders which are not part of this
    appeal, on motions brought by the parties, the trial judge did make orders
    requiring the child to accept and attend the court ordered therapist: see,
    for instance, the order of January 18, 2019, with reasons reported at 2019 ONSC
    527. As such, it is useful to review the extent of a judges authority to make
    therapeutic orders in custody cases.

[47]

I
    begin by reviewing the courts jurisdiction to make therapeutic orders under
Divorce Act
,
1985, c. 3 (2nd Supp.)

and the
Childrens Law Reform Act
,

R.S.O. 1990, c.
    C.1. Next, I analyze the interplay between the
HCCA
and legislation governing custody.
I
    conclude that the
HCCA

is
    not a controlling factor when a judge decides whether to make a therapeutic
    order in a custody case.

(a)

Jurisdiction to make therapeutic orders in custody cases

[48]

The
Divorce Act
and the
Childrens
    Law Reform Act
give judges broad authority to make custody orders and other
    corollary orders about a childs life.

[49]

Sections 16 (1) and 16(2) of the
Divorce Act
provide as follows:

16(1) A court of
    competent jurisdiction may, on application by either or both spouses or by any
    other person, make an order respecting the custody of or the access to, or the custody
    of and access to, any or all children of the marriage.



(6) The court may
    make an order under this section for a definite or indefinite period or until
    the happening of a specified event and
may impose such
    other terms, conditions or restriction in connection therewith as it thinks fit
    and just.
[Emphasis added.]

[50]

Sections 28(1) (a), (b) and (c) of the
Childrens
    Law Reform Act
state:

(1) The court to which an application is made
    under section 21,

(a) by order may grant the custody of or access
    to the child to one or more persons;

(b) by order
may
    determine any aspect of the incidents of the right to custody or access; and

(c)
may make such additional order as the court considers necessary
    and proper in the circumstances
[Emphasis added.]

[51]

Accordingly, where parents cannot agree, a court
    may make orders about almost any aspect of the childs life, including
    education, religious training, diet, vaccinations, recreation, travel, and so
    on. This includes making an order for counselling or therapy.

[52]

Other statutory provisions support this
    conclusion. For instance, section 17(8)(b) of the
Family Law Rules
, O.
    Reg. 114/99 grants a court the power to make an order at a case conference,
    settlement conference or trial management conference requiring a party to
    attend a program offered through a community service or resource. Here, the
    plain meaning of the term program would include counselling or therapy.

[53]

Additionally, under s. 30 of the
Childrens
    Law Reform Act
, a court may appoint a skilled professional to report on
    the needs of the child and the ability and willingness of the parties to
    satisfy the needs of the child. Not infrequently, the professional might
    recommend a course of treatment to promote the well-being of the child: see,
    for instance,
Leelaratna v. Leelaratna
, 2018 ONSC 5983
. A court should not be powerless to implement those suggestions.

[54]

As the trial judge pointed out in
Leelaratna
,
a large and liberal interpretation of the statutory and
    regulatory powers conferred upon the courts to make a wide variety of orders
    with regards to parenting, including therapeutic orders, is also entirely
    consistent with the courts duty to promote the best interests, protection and
    well-being of children: at para. 52.

(b)

Effect of the
HCCA
on a courts ability to make therapeutic
    orders

[55]

The OCL argued that if the child refuses consent
    to therapy, the
HCCA
prevents a court from ordering the child to
    participate in therapy. This is because section 10 of the
HCCA
prohibits
    a health practitioner from administering treatment to a capable person without
    that persons consent, and from administering treatment to an incapable person
    without the consent of the persons substitute decision-maker:

10 (1) A health practitioner who proposes a
    treatment for a person shall not administer the treatment, and shall take
    reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the
    person is capable with respect to the treatment, and the person has given
    consent; or

(b) he or she is
    of the opinion that the person is incapable with respect to the treatment, and
    the persons substitute decision-maker has given consent on the persons behalf
    in accordance with this Act.

[56]

However, there are some salient differences
    between the
HCCA
and the legislation directly governing custody cases.

[57]

The
HCCA
concerns the relationship
    between individuals and health care practitioners. It sets up a statutory
    regime and an administrative tribunal, the Consent and Capacity Board (the
    Board), to resolve differing views about a patients wishes and capacity.

[58]

The
HCCA
also aims to protect of a
    persons autonomy to make decisions about their own well-being, even if those
    decisions are not in their best interests. This prioritization of autonomy
    above best interests is noted in
Starson v. Swayze
, 2003 SCC 32, [2003]
    1 SCR 722, at para. 76:

The legislative mandate of the Board is to
    adjudicate solely upon a patients capacity. The Boards conception of the
    patients best interests is irrelevant to that determination. As the reviewing
    judge observed, [a] competent patient has the absolute entitlement to make
    decisions that any reasonable person would deem foolish (para. 13). This point
    was aptly stated by Quinn J. in
Koch (Re)
(1997), 33 O.R. (3d) 485
    (Gen. Div.), at p. 521:

The right
    knowingly to be foolish is not unimportant; the right to voluntarily assume
    risks is to be respected. The State has no business meddling with either. The
    dignity of the individual is at stake.

[59]

In
Starson
, the only issue before the
    Board was whether Professor Starson was capable of refusing consent to
    medication. The wisdom of his decision should not have had any bearing on this
    determination. The Supreme Court of Canada ultimately ruled that the Board had
    inappropriately focused on Professor Starsons best interests, and disregarded
    clear evidence of his capacity to refuse treatment.

[60]

In contrast, custody decisions prioritize the
    best interests of the child.

[61]

Section 16(8) the
Divorce Act
states
    that in making a custody order, the court shall take into consideration only
    the best interests of the child of the marriage as determined by reference to
    the condition, means, needs and other circumstances of the child.

[62]

Similarly, section 24(1) of the
Childrens
    Law Reform Act
states that the merits of a custody or access application shall
    be determined on the basis of the best interests of the child. Section 24(2)
    sets out the factors used to determine the childs best interests:

(2) The court shall consider all the childs
    needs and circumstances, including,

(a) the love, affection and emotional ties
    between the child and,

(i) each person,
    including a parent or grandparent, entitled to or claiming custody of or access
    to the child,

(ii) other members
    of the childs family who reside with the child, and

(iii) persons
    involved in the childs care and upbringing;

(b)
the childs views
    and preferences
, if they can reasonably be ascertained;

(c) the length of time the child has lived in
    a stable home environment;

(d) the ability and willingness of each person
    applying for custody of the child to provide the child with guidance and
    education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying
    for custody of or access to the child for the childs care and upbringing;

(f) the permanence and stability of the family
    unit with which it is proposed that the child will live;

(g) the ability of each person applying for
    custody of or access to the child to act as a parent; and

(h) any familial
    relationship between the child and each person who is a party to the
    application.

[63]

In contrast, Ontarios child welfare
    legislation, the
Child, Youth and Family Services Act
,
2017
,
    S.O. 2017, c. 14, explicitly provides that if a service being provided to a
    child under the care of a childrens aid society is treatment to which the
HCCA
applies, the consent provisions of the
HCCA
apply: s. 22(7). Further,
    s. 23(1) provides that a service provider may provide a counselling service to
    a child who is 12 years or older
with
the childs consent,
    but that subsection has no application where the service is a treatment under
    the
HCCA
.

[64]

The same legislative choice to refer to
HCCA
provisions is not part of the
Childrens Law Reform Act
or the
Divorce
    Act.


[65]

Under the
Childrens Law Reform Act
and
    the
Divorce Act
, the childs views and preferences are only one factor
    among many in determining the childs best interests. Consequently, a childs
    refusal to attend counselling is not necessarily determinative of their best
    interests.

[66]

Having said that,
A.C. v. Manitoba (Director
    of Child and Family Services)
, 2009 SCC 30, [2009] 2 S.C.R. 181 at paras.
    81 and 82 highlighted the potential tension between a childs growing autonomy
    and the childs best interests norm:

[81] The general purpose of the best
    interests standard is to provide courts with a focus and perspective through
    which to act on behalf of those who are vulnerable. In contrast, competent
    adults are assumed to be the best arbiter[s] of [their] own moral destiny,
    and so are entitled to independently assess and determine their own best
    interests, regardless of whether others would agree when evaluating the choice
    from an objective standpoint.

[82] The
    application of an objective best interests standard to infants and very young
    children is uncontroversial. Mature adolescents, on the other hand, have strong
    claims to autonomy, but these claims exist in tension with a protective duty on
    the part of the state that is also justified [citations omitted].

[67]

As a result, the majority in
A.C.
stated that the best interests standard must be interpreted in a way that
    reflects and addresses an adolescents evolving capacities for autonomous
    decision-making: at para. 88.

[68]

Under this interpretation of the best interests
    standard, a minors wishes will have greater weight as their maturity increases.
    In some cases, the court will inevitably be so convinced of a childs maturity
    that the principles of welfare and autonomy will collapse altogether and the
    childs wishes will become the controlling factor:
A.C
., at para. 87.
    Scrutiny of a childs maturity will intensify in relation to the severity of
    potential consequences of medical treatment or its refusal:
A.C.
at
    paras. 95. This is partly because it is inherently difficult to assess an
    adolescents ability to make medical decisions:
A.C.
, at paras. 70-79.

[69]

The majority in
A.C.
listed questions
    to assist courts in assessing maturity:

What is the nature, purpose and utility of the
    recommended medical treatment? What are the risks and benefits?

Does the adolescent demonstrate the
    intellectual capacity and sophistication to understand the information relevant
    to making the decision and to appreciate the potential consequences?

Is there reason to believe that the
    adolescents views are stable and a true reflection of his or her core values
    and beliefs?

What is the potential impact of the
    adolescents lifestyle, family relationships and broader social affiliations on
    his or her ability to exercise independent judgment?

Are there any existing emotional or
    psychiatric vulnerabilities?

Does the adolescents illness or condition
    have an impact on his or her decision-making ability?

Is there any
    relevant information from adults who know the adolescent, like teachers or
    doctors?: at para. 96

[70]

While
A.C.
was decided in relation to Manitobas
    child welfare legislation and its application of the best interests test, the
    above principles are still relevant for interpreting the best interests
    standard under the federal
Divorce Act
and Ontarios
Children Law
    Reform Act
.

[71]

Taking this together, the
HCCA
does not
    limit the courts jurisdiction to make therapeutic orders in the childs best
    interests. A court must always consider a childs view and preferences, but a
    childs refusal to participate in a therapeutic intervention will not necessarily
    determine whether a court can make such an order. Rather, a court must assess
    the childs maturity and weigh their wishes accordingly, in relation to the
    various factors listed in section 24(2) of the
Childrens Law Reform Act
.

[72]

There are of course risks in making therapeutic
    orders. The child may refuse to comply. A health care practitioner may consider
    that the child is capable and that he or she cannot override the childs
    refusal. The attempts at therapeutic intervention may fail. Courts cannot fix
    every problem.

[73]

That said, time and time again, experienced
    family court judges have emphasized the value of access to a broad variety of
    remedial measures. Again, in
Leelaratna
, the trial judge observed,
    there are often no legal solutions to family problems. Therapeutic orders can
    be very effective tools to help the family move forward, reduce the parental
    conflict, and help children transition though the emotional turmoil of their
    parents litigation in a healthier way: at para. 52, see also
Fiorito
,
    where a reversal of custody and therapy was ordered to remedy a fathers
    estrangement from his children. Judges deciding custody cases should be enabled
    to create or support the conditions which are most conducive to the flourishing
    of the child.

(c)

Application to this case

[74]

Each case must be determined on its own specific facts. The trial
    judge hears from all the witnesses and as such, is in the best position to assess
    the childs best interests. If there is no error in law, no palpable and
    overriding error of fact, and no misapprehension of evidence, appeal courts
    should not interfere.

[75]

In
    my view, there was no such error in this case. The trial judge considered the
    views and preferences of the child as conveyed through the OCL. He ultimately
    concluded the mother had poisoned the child against the father and the childs
    wishes were not his own. That is, the child lacked the requisite maturity to
    refuse counselling with his father. As addressed earlier, absent a challenge to
    this factual finding, the trial judge was entitled to put no weight on the
    childs wishes.

[76]

The
    trial judge reasonably concluded that the childs best interests required
    contact with the father and reconciliation therapy, over the childs heated
    objections. Without any conclusive evidence that such orders are ineffective 
    see for instance,
Nicholas C. Bala and Katie Hunter, Children
    Resisting Contact & Parental Alienation: Context, Challenges & Recent
    Ontario Cases (2015), Queen's University Legal Research Paper No. 056, online:
    <ssrn.com/abstract=2887646>
 this court should not and cannot
    interfere.

[77]

Given this conclusion, it is not necessary to
    explore the application of the
HCCA
to the order for counseling made
    by the trial judge, including the questions of whether the social worker was a
    health practitioner, whether the counseling ordered was treatment, and whether the
    child had capacity to refuse consent.

Fresh evidence

[78]

The test for fresh evidence on appeal is as
    follows: (1) could the evidence have been adduced by due diligence; (2) is the
    evidence relevant; (3) is the evidence credible; and (4) could the evidence reasonably
    be expected to affect the result:
Palmer v. The Queen,
[1980] 1 S.C.R.
    759, 106 D.L.R. (3d) 212 at p. 775.

[79]

We admit the fresh evidence on the appeal but
    this court is not in a position to weigh the conflicting evidence.

[80]

Each of the parties has filed large amounts of
    fresh evidence relating to events following the trial. The child has behaved
    badly. The father says that the mother has repeatedly breached the court orders
    made by the trial judge and done everything she can to undermine the process crafted
    by the trial judge. The mother says the child is not doing well and should be
    returned to her care.

[81]

The police had to assist in transport of the
    child to his fathers home, and the child has run away on numerous occasions.
    The trial judge, who remained seized of the matter, outlined some of the
    further problems at paras. 2-4 of his reasons on a post-trial motion heard
    January 9, 2019, reported at 2019 ONSC 527:

[2]  [The child] has also engaged in other rebellious
    behaviour since the trial decision. He would leave his fathers home early in
    the morning and return late at night if at all. He has, with the assistance of
    friends, vandalized his fathers home and contents of the home, completely
    trashing his fathers home office work space.

[3] He was refusing to eat any of the food
    prepared for him by his father and demanded money from his father for takeout
    food.

[4] He has alleged
    to the school, neighbours, police and Childrens Aid Society (CAS) that his
    father has been abusive towards him, and does not have adequate food or bedroom
    furniture for him. He has attempted to engage the CAS and the police to become
    involved. Both agencies have investigated and have not verified any of his
    concerns. The CAS has investigated the concerns and plans to close the file.
    The father has accommodated [the child]s requests for bedroom furnishing,
    buying new items.

[82]

The mother continued to violate the trial
    judges orders and undermine the childs restoration of a relationship with the
    father, as the trial judge observed at paras.15-17:

[15] Since the trial decision was released on
    October 30, 2018, the mother admits to only a few occasions of brief contact
    with the child. In the materials that the mother has filed at the Court of
    Appeal and before me, she has clearly displayed a complete lack of appreciation
    for the counterintuitive message she has given to the child. She has failed to
    include in any of her affidavit evidence that she has in any way discouraged
    the rebellious and destructive conduct and disrespectful attitude of [the child]
    towards his father. Not once did she claim that she has told the child to
    submit to his fathers custodial authority, that he attend school or Cadets, or
    that he cooperate with his father in attending counselling in accordance with
    the court expectations. She has shown to the court and to the child that she is
    unable to accept the trial decision, and therefore has continued to act in a
    manner that is contrary to the childs best interest

[16] Rather than admonishing [the child] for
    his defiant, rebellious, and self-destructive conduct and encouraging him to
    comply with the court order, she used his behavioral meltdown as evidence in
    support of her unsuccessful motion to stay. Surprisingly, the OCL supported the
    mother in this litigation strategy.

[17] In light of
    the messaging presented to [the child], there is little wonder that he has
    struggled so tremendously to accept the transition to his fathers care and
    custody. To her credit, the mother is now (in her submissions for this motion)
    articulating a desire to facilitate a smooth transition for the child to get
    him back on track with school and Cadets and to support the current court order
    for this part of his life. The child need his mother to not only say these
    things, but also to mean what she says.

[83]

The trial judge left the original six month
    review in place but made ancillary orders to promote the goal of
    reconciliation.

[84]

Matters got worse and the trial judge heard
    three motions on May 28, 2019, with reasons reported at 2019 ONSC 3503.

[85]

The trial judge described the continuing
    problems and his response to the mothers request for access or the return of
    the child at paras. 3-10:

[3] The evidence clearly establishes that on
    the surface [the child] is not doing well. He is not attending school, not
    attending Cadets, has caused damage to his fathers home, refuses to submit to
    his fathers rules, attends at his mothers home and communicates with his GM
    [maternal grandmother] contrary to non-contact orders and runs away from
    fathers home several times a week requiring engagement of the police for
    assistance in locating and returning him.

[4] On the other hand, [the child] has shown
    some glimpses of progress toward the goal of rebuilding his relationship with
    his father (the goal). He has engaged in some meaningful discussions with his
    father regarding a plan for his education and he willingly attended a dinner
    out and a Raptors game with his father. He has also resided primarily at his
    fathers residence in compliance with my orders. Unfortunately, he also
    continues to display very blatant acts of disrespect towards his father,
    recently pouring the bulk of contents of 2 water bottles over his fathers head
    while laughing.

[5] I do not agree with the OCL and the
    Respondent Mother that [the child] is in crisis, or at least not a crisis over
    which he has no control. He is not a child without options who is forced to
    live on the street. He has the option of living under the roof provided by his
    father and eating the food provided by his father. He has the option to bathe
    at his fathers, attend school, Cadets and therapy. He chooses not to. If he is
    in crisis it is because he is not allowed to have what he wants  to reside
    with his mother. The solution is not to give in to his rebellious behaviour and
    give him what he wants. I am more concerned about what he needs.

[6] The suspension of contact between [the
    child] and his mother and her family is not meant as a punishment for [the
    child] or anyone else. The suspension of contact is meant to eliminate the
    distraction from the goal.

[7] Unfortunately the distractions caused by
    the Respondent Mother and GM in particular go well beyond inane distractions
    such as a squirrel is to a dog.

[8] The reversal of custody and suspension of
    access was not meant to be a permanent solution. The purpose of these and the
    many related orders was to get everyone, as Mr. Ludmer suggested, on the same
    path, or to use another metaphor, the plan was to get everyone in the same boat
    and paddling in the same direction. By allowing [the child] the option of
    maintaining contact with the negative influence of the Respondent Mother and
    GM, these individuals are telling [the child] that he does not have to comply
    with court orders or work on his relationship with his father.

[9] To allow continued contact or to grant the
    Respondent Mothers request to return [the child]s residence to the Respondent
    Mother, is to return [the child] to the situation he experienced prior to the
    order reversing custody. The findings I made after 11 days of trial clearly
    established that such a situation was not in [the child]s best interest.
    Although he was attending school more regularly and attending Cadets,
    psychological dysfunction caused by the alienating conduct of the Respondent
    Mother had started to set in. [The child] had started to skip school, had
    become addicted to video games and had become oppositional to his mother. All
    of this was on top of showing a total lack of respect for the Applicant Father.
    In my view, cracks were starting to form in [the child]s foundational needs to
    show respect for authority and in particular, his parents. I cannot place [the
    child] back into that situation.

[10] However, it is evident to me that the
    current situation is also not working. There is no evidence that the Respondent
    Mother has accepted the trial findings regarding alienation and the value of [the
    child]s relationship with the Applicant Father. Until that happens, I cannot
    be assured that everyone will be on the same boat and on the same path toward
    the goal.

[86]

On June 4, 2019, the child and his friend came
    to the fathers home. The childs friend assaulted the father (age 70) with his
    fist. The child and his friend left the home as the father called police.

[87]

On June 11, 2019, the child climbed to the roof
    of the fathers home. The child threatened to beat his father up when the
    father asked him to come down. When the child did come down from the roof, he physically
    attacked his father, leaving the father with severe bruises to his head, and
    injury to his arm.

[88]

On June 17, 2019, the child and his friend
    threatened to beat the father to death in the basement of his home. The child
    assaulted his father. The father suffered significant bruising and swelling to
    his face, eye, head and ear. The father contacted police and the child was
    charged. Ultimately the child was released on condition he have no contact with
    his father. Given the court orders preventing contact with the mother, the
    child was found to be a child in need of protection and is now in a foster
    placement pursuant to an order of the Ontario Court of Justice.

[89]

On July 31, 2019, the father was advised the
    child went absent from the foster home without permission. Police later that
    day advised the father that the child had stolen a cell phone from another
    child.

[90]

On August 6, 2019, in an incident apparently
    related to the childs robbery of another child, the child himself was
    assaulted and suffered broken bones under his eye. He required surgery and had
    plates implanted in his face.

[91]

There have been significant changes since the
    trial judges decision of October 30, 2018. The child is now approaching his 15th
    birthday and seems even more entrenched in his attitude towards his father. The
    process that the trial judge contemplated has not gone well. Considering the
    serious credibility issues in this case, the Superior Court is best positioned
    to deal with these new developments.

CONCLUSION

[92]

The trial judge has not erred in any respect
    justifying appellate intervention. The appeal is dismissed. The parties may
    make brief written submissions as to the costs of this appeal, due within 30
    days of the release of these reasons from the father, and within 15 days
    thereafter from the mother.

Released: September 30, 2019

GP

G.
    Pardu J.A.

I
    agree David M. Paciocco J.A.

I
    agree B. Zarnett J.A.





[1]

That
    case seems to have had a very happy ending. In a subsequent hearing Hebner J. observed
    that: On the evidence as a whole, I find that a change in custody has made a
    remarkable difference in the relationship these three girls have with their
    father. In fact, I can safely say that the change in custody has saved that
    relationship. Were it not for the change in custody, I have no doubt whatsoever
    that the children would not have any sort of relationship with their father:
    2016 ONSC 3678 at para. 32.


