A recent case shows exactly how heart-wrenching some Family law disputes can be. In Daniels v. Stemberga, the court had the unenviable task of a deciding whether a 12-year old boy should be forced to visit his dying mother in palliative care, since her death from Stage 4 cancer was imminent.
The court set the poignant scene:
The Respondent mother … has been diagnosed with breast cancer which her oncologist reports is sadly incurable and terminal. She was admitted at the Ottawa General Hospital on September 22, 2022. She is presently in a palliative state and will either remain in hospital or return to die at home under palliative care. The oncologist cannot provide a precise timeline for when she may die. The mother brings an urgent motion for an order to have her 12-year-old son J.D. (“child”) visit her before she dies.
The father was opposed to allowing the boy to visit. He and the mother had a contentious history, and a high-conflict split. The Children’s Aid Society even had to get involved. The father claimed the mother lacked insight into the harm she had caused her son in the past.
Indeed, the boy had himself chosen not to see the mother for many months. In assessments, he had expressed great anger toward her, and did not want to be left alone with her. He also had major behavioural issues at home and at school – problems with self-regulation and anger, and significant behavioural problems at school and with his peers.
With this in mind, the father felt it was not in the boy’s best interests to force him to see his dying mother, especially when the boy had made his objections clear.
The court looked at all the facts, but honed in on the key issue of what was in the boy’s best interests. This involved considering multiple factors.
First, it noted the mother acknowledged some of her past mistakes, and the fact that the relationship with her son was strained. She recognized that the damage might not be resolvable before she dies.
Next, the court observed that the former couple’s parenting arrangements had devolved since their split: It had gone from the mother first being the primary caregiver, then to shared parenting, and now it involved the father being the primary caregiver – with the mother having only limited virtual and supervised parenting time. In the past year, she had sent the father several emails asking for visitation with the boy, but he ignored them. This prompted the following incident:
On June 9, 2022, the mother went to the father’s home in desperation. The father opened the door and told her that the child did not want to see her. He brought the child to the door and according to the mother, the child looked down and stated, “I don’t want a mother in my life.”
The next consideration was a relatively key one: The boy’s own preferences. The court recited a summary of some assessment reports on this point, that had been specifically commissioned:
[The boy] was specifically asked about visitation with his mother. He was aware that she was dying and wanted to see him. He indicated this made him nervous and was glad he was offered a chance to talk about his feelings on this issue. He stated that he did not care if his mother was dying, and he had no interest in seeing her ever again. He said he felt disgusted that she would be making him feel bad by saying she was dying again. He did not care if she wanted to see him out of love or other feelings. He had no care for what she felt or thought anymore.
[The boy] stated that if the courts tried to make him see his mother, he would not go. He was aware that at 12 he had a right to decide what happened to him and where he went. He stated he did not feel safe around his mother, and the Judge “shouldn’t force me to do something that makes me feel anxious is stressful and is unwanted.”
The court acknowledged that the child’s preferences were abundantly clear, and should be given respect. However, they were not entirely determinative in the circumstances. The court gave a thought-full and fulsome explanation for this conclusion:
Maintaining the child’s emotional, mental, and physical stability as he proceeds into his teenage years is a best interest factor that must be considered. Having said this, [the child] is only 12 years of age. He is not an emotionally mature adult. He does not, and cannot be expected to, have any insight into the complexities of arriving at the truth in high conflict situations or the importance of forgiveness and reconciliation. While I do not believe he will be able to reconcile his feelings of hostility towards his mother through a visitation at her death bed, and in fact I expect it may take years for this child to heal emotionally, I find that for the sake of his long term emotional and mental development, it is in his best interests to see, speak to and listen to his mother at least once before her death. One can only hope that the experience, whether now or at a later date, will allow him to start processing and coming to peace with his complex relationship with his mother. …
Nonetheless, I find that it is important for [the child’s] emotional and personal development to have this opportunity for closure with his mother. It does not bode well for him to go through life with self-doubt, questions, and guilt should he harbor any misplaced feelings about the cause of his mother’s condition or to experience regret in the future for never having taken the opportunity to hear from and be reassured by his mother that he is blameless for both her illness as well as the parental conflict that has impacted this family.
Finally, while the child presently feels tremendous anger towards his mother, it is possible that these feelings will morph into bewilderment, confusion, and curiosity as he matures. He may read this decision again at a later date as well as the many court pleadings and reports concerning the conflict in his family and question why the adults in his life did not at least try to have him meet and resolve these issues with his mother, whatever her misdeeds, before her death. …
[The fact that neither [of two medical experts] can put a number to the days the mother has remaining does not change the fact that her condition is terminal. Anyone who has experienced loved ones dying from cancer knows that the disease is unpredictable. Sometimes a person can endure much longer than science predicted, and other times, a person’s demise is swift and unforgiving.
In ordering the boy should indeed visit with his mother one last time, the court added some practical directions:
Having considered the best interests factors, I find that it is in the best interests of this child to have a final visit of one hour with his mother prior to her death. The visit will take place within the next seven days. The father shall facilitate the visit and take the child to the hospital, settle the child in the room with his mother, but not remain for the duration of the visit. Arrangements can be made for a nurse or adult supervisor approved by the father to be present for the visit. Upon completion of the visit, I would ask that counsel send a note to my judicial assistant confirming the visit occurred. If there are issues, counsel may bring the matter back before me.
Thereafter, should the child wish to see his mother again, it will be solely at his discretion.
The court also spoke directly to the mother, with some recommendations as to content of that ordered visit:
The court is not here to micromanage what should or should not be said by the mother to the child during this final visit. She is an intelligent woman with insight into the family history. This visit is not a therapy session to right all past wrongs. It is a compassionate visit to provide both the mother and the child with an opportunity for some form of closure prior to her death.
Should the mother have more to say to the child, it was suggested that she write a series of letters to her son and entrust them with a person who may deliver them to [the child] at a later date should he have any interest in viewing them. That may be when he is 18 years of age, an adult, of perhaps a father to his own children one day. The decision will be up to him as he moves forward in life.
Finally, the court added a compassionate ending paragraph to its judgment, which said this:
Finally, whatever the outcome of this final visit, let this decision stand as a record for the child that his mother has never abandoned or given up on him, that she loves him, and up to the time of her death, she continued to wish to see and be with him.
Full text of the decision: Daniels v. Stemberga, 2022 ONSC 6263 (CanLII)
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