CITATION: Jegasothy v. Jayaraj, 2010 ONSC 4263
COURT FILE NO.: DC-10-00125
DATE: 20100810
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
JAYARAJ JEGASOTHY
Applicant
Christine Hugel, for the Responding Party
- and -
KRISHANTHY JAYARAJ
Respondent
Julie Amourgis, for the Moving Party
HEARD: July 28, 2010
REASONS FOR DECISION
LAUWERS J.
[1] By Order dated January 20, 2010, McGee J. ordered a change in the primary residence of the child, Lukshika Jayaraj, born September 4, 2006, from the respondent mother to the applicant father effective January 23, 2010. In doing so, she relied on the report of Elana Presement, MSW, RSW, clinical investigator who prepared the report of the Office of the Children’s Lawyer (“OCL”) dated September 27, 2009. The contents of this report were disputed by a filing dated October 29, 2009.
[2] The decision of McGee J. summarizes the report of the Office of the Children’s Lawyer accurately:
The Report recommends that Lukshika be placed in the sole custody and care of her Father, with specified, supervised access to her Mother. The Report’s conclusions rest heavily on observations that the Mother’s diagnoses of schizophrenia and depression are negatively impacting on her ability to parent. Indeed, the Report recommends that any provision for supervision recognize the severity of the Mother’s illness.
[3] McGee J. relied heavily on the report:
Each party provided affidavit evidence in addition to the Report. I have reviewed all the materials before me carefully and agree with Father’s counsel that the Report is the best evidence before me. It is neutral, objective and comprehensive. Mother disagrees.
[4] McGee J. reached the following conclusion:
A Court must exercise caution in changing a child’s primary residence prior to Trial. In this case, the exercise of that discretion is warranted. The delay in hearing this matter following on the August disclosure meeting does not fall at the feet of the father and time is of the essence given the conclusions of the Report. I find that there is risk to the child remaining in the Mother’s primary care and I order that her primary residence be transferred to the Father effective January 23rd at 10:00 a.m.
[5] The report of the OCL relies heavily on the evidence that the interviewer got from Dr. Choy, who is the mother’s psychiatrist. The report provides:
According to Ms. Jayaraj’s psychiatrist, Dr. Choy [emphasis in original], Ms. Jayaraj has a primary diagnosis of schizophrenia and a secondary diagnosis of depression. Depression is common among high functioning schizophrenic patients.
Dr. Choy has treated Ms. Jayaraj for approximately 5 years. He feels that she has good reason to feel depressed as she has had to mourn the loss of her career and was living in an unhappy marriage. He said that when Ms. Jayaraj’s mental health declines, it is a long period of slow deterioration. When she is compliant with her medication, she does very well. Ms. Jayaraj takes two kinds of medication: Risperidone for psychosis and Venlafaxine-XR for depression. Dr. Choy said that when he saw Ms. Jayaraj in July 2009, she was showing initial signs of relapse. While she was not currently psychotic, she was showing symptoms of depression again which is a precursor to the relapse of the psychosis. She was in touch with reality but was displaying a slow, flat affect and inappropriate responses. Ms. Jayaraj told Dr. Choy that she had not taken her medication for one month, although Dr. Choy suspected it was perhaps two months because of the amount of extra mediation (sic) that Ms. Jayaraj had left over from her prescription. Dr. Choy was alarmed when Ms. Jayaraj told him that her parents had been travelling out of the country during the past month. It is Dr. Choy’s understanding that Ms. Jayaraj’s parents are meant to monitor her compliance with her medication at all times. Ms. Jayaraj has always been treated as an outpatient and has not been hospitalized while in the care of Dr. Choy.
[6] The discussion section of the report provides:
The subject of Ms. Jayaraj’s mental health has been a main focus of this investigation. Ms. Jayaraj has a primary diagnosis of schizophrenia and a secondary diagnosis of depression. As recently as August 2009, her psychiatrist, Dr. Choy, raised strong concern that Ms. Jayaraj had admitted to not taking her medication and that her mental stability was deteriorating. In the past, Dr. Choy had contacted the York Region Children’s Aid Society about this very issue. The Society has verified the concern about Ms. Jayaraj’s caregiving capacity which they feel places Lukshika at risk. On two occasions, the Society closed their file with the solid understanding that Ms. Jayaraj would take her medication as prescribed and that her parents would monitor her compliance. In June 2009, Ms. Jayaraj’s parents travelled to the United States for more than one month during which time Ms. Jayaraj says she did not take her medication.
[7] Ms. Amourgis, counsel for the Moving Party, notes that two letters from Dr. Choy were also filed with the Court. The first was dated February 19, 2009. It states:
My working diagnosis is Schizoaffective disorder which has both psychotic and mood symptoms. The illness is mild and she responds well to very low dose of anti-psychotic and antidepressant. Her function is good. I consider the illness as in full remission and that her GAF is 90 for the last one year.
In terms of her ability to look after the child, CAS is fully satisfied and so are her parents. As long as she stays on her medication I do not anticipate any problem for her to care for the child or any concerns for her to have full custody.
[8] On November 30, 2009, just before the hearing, Dr. Choy wrote another letter in which he tried to contextualize the facts referred to in the report of the OCL.
Further to my previous report dated February 15, 2009, Ms. Jayaraj remains practically as good as I last reported to you. There was a small set back in July this year when her parents were away in the US, she missed her appointment and went off her medications for one month. She became depressed and was somewhat slow in her response. There was no psychosis. She had to exert an effort in motivating herself. During that visit she brought her child along. The child appeared happy, contented and was well cared for. The bonding between the child and her was very good despite the fact that Ms. Jayarah (sic) was somewhat depressed.
Yes, she did went off medication a few times during the many years under my care but the trend is that she is getting better and better in adherence to treatment and improving tremendously in her insight to her illness. Most impressively, she is working independently, off ODSP, and caring her for her child with successful bonding. CAS has closed her file. I really have no concern for her parenting her child. The child is healthy, happy and well attached to the mother.
[9] Concerning these letters, McGee J. said:
Dr. Choy’s letter is not sworn and it is unknown what, if any expertise he holds in assessing parenting capacity, or parent child-attachment. Nonetheless, I do accept that it is not in the child’s best interest for her bond with her Mother to be disrupted. It is essential to healthy child development that children have close, meaningful and beneficial relationships with both parents.
The letter of Dr. Choy, to which I refer cautiously, must be considered in context. He is in a trusted therapeutic relationship with the Mother and did not meet with the Father in the course of preparing his letters. He is not an assessor of the child related issues, but rather, the mental health issues of the Mother. The Children’s Lawyer focussed on the child’s issues and safety, and it is their conclusion that the Mother’s is unable to consistently and independently parent Lukshika.
[10] Ms. Amourgis argues that it was wrong in principle for McGee J. to have relied so heavily on the report of the OCL, particularly when elements of it were contested. She cites Samson v. Samson (2006), 2006 42645 (ON SC), 33 R.F.L. (6th) 211, [2006] O.J. No. 5108 (S.C.J.) per Blishen J. at para. 24: “It is generally accepted that the status quo should not be changed on an interim basis in the absence of evidence that the existing arrangement is harmful to the children. Maintaining the status quo may not always be in the best interests of the child but there should be some significant evidence to justify a change.”
[11] Ms. Amourgis points out that there are two principles of law at issue, as Mulligan J. noted in M.D.W. v. M.W. 2008 63195, (sub nom: Winn v. Winn), (2008), 60 R.F.L. (6th) 203 (S.C.J.) at para. 9:
[9] The issue before the court is whether or not access arrangements ought to be changed from the status quo based on the report of the Children’s Lawyer and the competing affidavits of the father and mother. Both parties referred the court to the case of Grant v. Turgeon 2000 22565 (ON S.C.), (2000) Carswell Ont. 1128, 5 R.F.L. (5th) 326. In that decision, MacKinnon J. stated as follows:
There are two principles of law at play in this case. The first is that, generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp (1969), 1969 219 (ON CA), [1970] 1 O.R. 331 (Ont. C.A.).
The second principle is set out in Genovesi v. Genovesi (1992), 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Gen. Div.)[93 D.L.R. (4th) 262 (Ont. Gen. Div.) at paras. 18-21], where Granger J. states at p.32:
An assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding. In rare cases the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement.
Granger J. goes on to say at p.33 that the general rule that the assessor’s recommendation ought not to be acted upon without a full trial should be followed except in exceptional circumstances where immediate action is mandated by the assessor’s report.
[12] Granger J cited Shackelton v. Shackelton, a decision of the Ontario Court (Provincial Division) released on February 17th, 1992, Doc. London D232/91, [summarized 31 A.C.W.S. 3(d) 1013], Vogelsang Prov. J. for the proposition that it is an abuse to use reports to vary interim custody orders in order to “gain an advantage at trial by the establishment of some form of status quo.” He also cited Shody v. Shody, a decision of the Ontario Court of Justice (General Division) released January 31, 1992, Doc. 21187/90 ([1992] O.J. No. 205) per Salhany J. at pp. 1-2
[13] Ms. Amourgis stresses the hazards of relying on such untested reports. Bias can creep in, as was observed in Avitan v. Avitan (1991), 1992 13969 (ON SC), 38 R.F.L. (3d) 382 (Ont. Gen. Div.) and Weiler v. Phifer (2007), 156 A.C.W.S. (3d) 129, 2007 9240 (S.C.J.), [2007] O.J. No. 1096 at paras. 22-36.
[14] Ms. Hugel argues that the exceptional circumstances in this case justify factually the approach that McGee J. took. The acknowledged mental illness of the moving party, and the hazard that her occasional lapses in taking medication pose is well established factually and is not seriously contested. She adds that the extended family seems unable to deal with Ms. Jayaraj to ensure that she stays on her medication. If she is not on her medication, she seems to pose a risk to the care of the child.
[15] Ms. Hugel relies particularly on the decision of Benotto S.J. in Davis v. Nusca [2003] O.J. No. 3692, 125 A.C.W.S. (3d) 455, 2003 2301 (Div. Ct.). The order under appeal permitted the mother to take the children and enrol them in school in Sweden with the trial date coming up in December. Benotto J. held at paragraph 9 that the decision was supported by the concept of “continuity of care.” She added:
[11] Lastly and very importantly, I agree with Justice Chapnik’s decision in Fine v. Fine, [1998] O.J. No. 2119 where she stated as follows:
An Appellate Court will not interfere with an interlocutory order unless it is clearly and demonstrably wrong. In Family Law matters, the remedy is ordinarily to bring the matter on for hearing rather than by way of appeal of an interlocutory order.
[12] With a December trial date fast approaching, the children would be better served if their parents prepared for trial rather than an appeal of an interim order.
[16] I raised with Ms. Amourgis the paradoxical position: ultimately the proper residence of the child can only be determined after a trial, but a trial would be delayed by any appeal. She argues, nonetheless, that proper use of OCL reports is a matter of general concern in family law. I agree, however, with the observation of Lane J. in L.D. v. Durham Children’s Aid Society (2005), 21 R.F.L. (6th) 252, 2005 63827 at para. 28 (Div. Ct.): “The present order was fact-driven and raised no broad issues of public importance that make it desirable that leave should be granted.”
[17] Family law cases are endemically “fact-driven”; the current spectrum of decisions on the use of OCL reports seems to provide sufficient flexibility for courts to deal fairly and justly with the range of fact situations between the ordinary and the exceptionally difficult. I see no reason to doubt the correctness of the decision of McGee J.; the case does not raise matters of such importance that appellate review is warranted. The motion for leave to appeal is dismissed with costs. I have reviewed the costs outline of Ms. Amourgis and the bill of costs of Ms. Hugel. I find her request for costs in the amount of $1,600 plus HST to be completely reasonable and make that award.
[18] This matter can proceed to trial at the November sitting in 2010. Progress towards trial should not be delayed. The parties agree that an expedited trial should be ordered and I therefore do so on consent.
P.D. Lauwers J.
RELEASED: August 10, 2010