In the recent decision of Da Torre v. Grossi, 2023 ONSC 6133, Justice Vella dismissed a father’s motion seeking reunification therapy with his 12-year-old daughter prior to trial, despite allegations of parental alienation against the mother. The case highlights the importance of a thorough examination of the juridical background, the pattern of parenting time exercised, and the evidence presented by both parties and relevant professionals when seeking such orders.
Background
The parties, who separated in 2015 when their daughter was 4, were scheduled for trial on parenting issues in two months. The father had a history of inconsistently exercising court-ordered supervised parenting time over the years, with substantial gaps in contact. More recently, the father was advised that the child, now 12, no longer wished to attend visits, feeling safe only in a supervised setting due to concerning behaviors she experienced from him.
The father brought a motion seeking reunification therapy, alleging the mother had alienated the child from him. The Court considered extensive evidence, including affidavits from the parties, the paternal grandmother and aunt, and reports from a psychologist, a child and family therapist, and the Office of the Children’s Lawyer (OCL).
Analysis
Justice Vella’s careful reasons exemplify the caution courts must apply when faced with requests for therapeutic remedies on an interim motion in the face of untested, conflicting evidence. Her Honour outlined several factors courts must consider, drawing on the leading decision of Leelaratna v. Leelaratna, 2018 ONSC 5983:
- Whether the cause of the family dysfunction is clearly established on the evidence;
- Whether there is compelling evidence that the proposed therapy would benefit the child;
- The stage of the proceedings at which the order is sought;
- The likelihood of the parents meaningfully engaging in therapy; and
- The likelihood of the child voluntarily participating in therapy.
Applying these factors, Justice Vella found the cause of the parenting dysfunction was unclear on the limited motion record, and there was no compelling evidence that reunification therapy would benefit the child, particularly given her expressed safety concerns.
While recognizing the risk of entrenching alienation by deferring a ruling, Justice Vella found that risk relatively modest given the father’s history of underutilizing parenting time and the proximity of trial. Her Honour concluded it was preferable to assess the issue on a complete record at trial, including a Voice of the Child report, to ensure any therapeutic remedy aligned with the child’s best interests.
The Court also noted the lack of expert evidence supporting parental alienation or the specific therapy proposed, and found the father’s therapy plan lacked the necessary specificity. Importantly, the OCL report did not substantiate alienation and recommended maintaining the status quo pending trial.
Takeaways
Da Torre v. Grossi offers valuable guidance for family law counsel:
- The importance of a comprehensive evidentiary record, including expert assessments and neutral third-party reports, when seeking therapeutic orders on motion.
- The need for detailed expert evidence diagnosing parental alienation and recommending a specific treatment plan.
- The weight accorded to the views of older children who express safety concerns about a parent, even in the face of alienation allegations.
- The relevance of the parents’ historical exercise of parenting time and alternate explanations for parent-child contact problems.
- The preference for deferring significant therapeutic interventions to trial where a complete record allows for better-informed best-interests findings.
While every case is unique, Da Torre v. Grossi underscores the heavy burden on a parent seeking reunification therapy or similar relief on an interim motion. Counsel must carefully assess whether the available evidence can meet the high threshold required, or whether their client is better served deferring the issue to trial, especially where it is imminent. A failed interim motion may ultimately prejudice the client’s position and undermine their credibility before the court deciding the final parenting issues.
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Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
- Nearly Four Decades of Expertise in Family Law: Cheryl brings almost 40 years of experience specializing exclusively in family law.
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- Recipient of Prestigious Awards and Honors: Cheryl’s outstanding contributions to the practice of family law have earned her numerous awards, honors, and distinctions, including the highly esteemed Ontario Bar Association’s Award for Excellence in Family Law.
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