Court File and Parties

Ontario Court of Justice

Date: September 3, 2015

Court File No.: Halton 70/09

Between:

Carole Helen Courville Applicant

— And —

Darren Richard Courville Respondent

Before: Justice V. Starr

Heard on: August 31, 2015

Reasons for Decision on Motion released on: September 3, 2015

Counsel:

• Geoffrey Carpenter, for the Applicant
• Catherine Haber, for the Respondent

VICTORIA STARR J.:

INTRODUCTION AND OVERVIEW

[1] The father has brought a motion to change the primary residence of the parties' son and for an order granting the mother specified access pending the trial of the issues of custody and access in this matter. The mother opposes the father's motion and has brought her own motion for a change to the father's access and requiring the parties and the child to participate in family counselling, pending trial, with a condition that the first counselling appointment be scheduled before the father exercises any further access to their son. The trial of the custody and access issues is scheduled to begin on January 13, 2016.

THE POSITIONS

[2] The mother's position is that the father has alienated their soon to turn 15 year-old son, Colin. The father disagrees. His position is that the child is justifiably estranged from the mother, wishes to reside primarily with him and to have access to his mother on alternating weekends. Both parties have filed expert reports (an assessment and a critique of the assessment) in support of their respective positions. The experts have not been cross-examined on their reports. A central issue for trial will be whether the child's wishes are independent and what must be done to rehabilitate the relationship between the mother and Colin.

THE ISSUE AND THIS COURT'S DECISION

[3] The issue to be decided on these motions is whether there are compelling reasons necessitating an immediate change to the status quo, pending trial. I find that there are not and in the result have dismissed both parents' motions. The reasons for my decision are set out below.

REASONS

[4] It is not disputed that Colin resided with both parties until their separation and since then he has resided primarily with his mother and enjoyed alternating weekend and holiday access with his father. This parenting arrangement was one agreed upon by the parties and is set out in their separation agreement dated July 3, 2007. It is also not disputed that this was the longstanding status quo as at March 25, 2015. When this motion was heard on August 31, 2015 and for reasons explained below, there had been no contact between Colin and his father for 159 days.

[5] The jurisprudence is clear with respect to temporary motions regarding custody and access: the status quo should be maintained until trial, unless there is a compelling reason to change it. This has been referred to as the "Golden Rule" in family law proceedings (see: Coe v. Tope, 2014 ONSC 4002, Kimpton v. Kimpton). In the case of S.I. v. S.P.P., 2010 ONCJ 473, Justice Wolder frames the principle this way at paragraph 3:

I am persuaded that, although a motion for temporary relief has to be based on the children's best interest, it should never disturb the existing status quo unless there exists such urgency that it is necessary to do so, in the child's best interest.

[6] The father argues that there is no status quo as a result of two events. The first event is the 90 day no contact order made on consent and on a without prejudice basis on March 25, 2015. The second event occurred on July 10, 2015, when this court, as a term and condition of the adjournment of the mother's motion requested by the father, extended the March 25, 2015 no contact order pending the return of the motion and further order of this court. That order was made on a contested, but without prejudice basis.

[7] I am not persuaded by the father's argument for several reasons.

[8] Despite either the March 25, 2015 or the July 10, 2015 orders, the long-standing residential arrangement is that this child's primary residence has always been with live in the same home as the mother. This status quo was not changed or affected by either order.

[9] What has changed since March 25, 2015 is the father's access to the child.

[10] The change to the father's access was intended by both the parties, and later the court, to be temporary.

[11] The no contact order was, in essence, the suspension of the status quo regarding access, not its termination.

[12] As I noted in my oral reasons of July 10, 2015, the intention of the parties when they agreed to the 90 day suspension of the father's access, was that the issue of whether it should come to an end or be extended would be decided at a motion that was to be heard immediately following the 90 day period. The dates were set so that a decision could be made before the father's next regularly scheduled access visit. One of the key advantages to a case management system in family law is that the judge who hears a motion usually has some familiarity with the family, the issues, what has been done to try and resolve the issues, and why. As the case management judge in this case I was present at that court attendance I am certain that the father would never have agreed to the no contact order had he thought for one minute that it would not end automatically in the event that no motion was brought, or, if a motion was brought to suspend his access, that he would not have an opportunity to argue that his access should not be changed prior to any further interruption in access. The intention of the parties matters and it was not to terminate the pre-existing status quo either indefinitely or for any prolonged period.

[13] Whether the result of underhanded litigation tactics (as was argued by the mother on July 10, 2015), or the result of miscommunication or a misunderstanding on the part of counsel, the adjournment of the June motion was secured before the mother realized that the father did not plan to honour the original intention to have the motion heard before his access resumed. As soon as she realized this she immediately brought an urgent motion.

[14] The no contact order was extended by order of this court on July 10, 2015, pending the hearing of the motion but the responsibility for the extended length of that no contact order lies at the feet of the father. Understandably, he placed greater priority over ensuring that he had counsel of his choosing to represent him at the motion above a speedy hearing on one of the earlier dates offered to him by the court. The motion was scheduled for August 31, 2015, as this was the first date available to the court and to the father's new counsel.

[15] The words "without prejudice" contained in the consent order of March 25, 2015 and in the order this court made on July 10, 2015, are not empty words. The court, the administration of justice, and the parents who come before this court depend on this. If family law disputes are to be settled or moved towards final resolution and in a speedy, efficient, and cost effective way, parties must have the ability to agree to "test drive" new arrangements. To do this, they must have some assurance that the temporary without prejudice orders they agree to (particularly when those orders deal with trying out changes that they are worried may negatively affect their children), can be reviewed following the agreed upon timeframe. In this case, the insertion of the words "without prejudice" was meant, in part, to give each party confidence that when the motion was finally heard, the court would start from the presumption that unless there was a compelling reason to do so, the status quo that they agreed to suspend, would be maintained.

[16] The balance of the jurisprudence with respect to "temporary status quo" points to this principle: where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate. (see Rifai v. Green, 2014 ONSC 1377, Kennedy v. Hull, 2005 ONCJ 275).

[17] For all these reasons, I start with the presumption that the previous long-standing status quo of the child residing primarily in the same residence as the mother is appropriate. I also start from the presumption that the status quo with respect to the father's contact with the child that existed prior to March 25, 2015 (alternate weekend access and as otherwise reflected in the party separation agreement), is appropriate and should be restored, unless there are compelling or urgent reasons to change that status quo. It is to that question that I next turn.

EXPERT EVIDENCE AND ASSESSMENT REPORTS

[18] In support of her position that the father is alienating Colin, the mother submitted into evidence the section 30 custody and access assessment report of Jacqueline Vanbettlehem. The assumptions, conclusions and recommendations of the assessor are, in part, drawn from the psychological testing of the mother and father conducted by Dr. Holloway.

[19] The father had the section 30 assessment report and the psychological reports critiqued by Dr. Linda Gotlieb Kase and he has submitted her affidavit, sworn August 6, 2015, with her critique report attached as an exhibit. That critique calls into question, among other things:

• Vanbettlehem's expertise in the area of parental alienation;
• Vanbettlehem's neutrality and objectivity;
• Vanbettlehem's methodology;
• Vanbettlehem's assumptions, conclusions and recommendations; and,
• The reliability of Dr. Holloway's psychological reports.

[20] The father's position that this is a case of justified estrangement is supported by the opinion and conclusions of Dr. Kase based upon such things as her expertise, review of the materials, and interviews with collaterals but not the mother or the child. Not surprisingly, the mother challenges the reliability of Dr. Kase's opinions on the basis of, among other things, the limited value of a critique and opinion in such circumstances.

[21] No factual findings have been made in this case. There are also, now, two competing theories to explain the negative aspects of Colin's relationship with his mother and his wish to reside primarily with his father. No cross-examination has been requested or conducted of the authors of these reports. As a result of this and the challenges, there is a need for Ms. Vanbettlehem's, Dr. Holloway's, and Dr. Kase's reports to be thoroughly evaluated on all aspects including the author's credentials, methodology, observations, factual findings, theories and recommendations. These evaluations can only be done at trial.

[22] The answer to the question of whether this Court should rely upon any of the reports in the circumstances I have described is found in the jurisprudence. There is a wide body of case law with respect to the implementation of recommendations made in a section 30 assessment and in other similar reports for use in custody and access litigation on an interim basis at the motions stage. In the case of Marcy v. Belmore J.L.M. v. P.D.A.B., 2012 ONSC 4696, Justice Pazaratz summarizes the problem and the solution as follows at paragraphs 15 and 16:

15. Assessments and section 112 reports are generally prepared for consideration at trial – where the report will form part of the evidence. A trial affords an opportunity for thorough evaluation of all aspects of the expert's report including the author's credentials, methodology, observations, factual findings, theories and recommendations. There is no equivalent opportunity for such testing and analysis at the motions stage. Nor is there the opportunity to assess credibility and factual disputes; or consider the weight to be given to the assessment in the context of the overall evidence which will be available at trial. Genovesi v. Genovesi (1992), 41 R.F.L. (3d) 27; Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.).

16. As a result, courts should be extremely cautious about relying on untested professional reports at a motion pending trial, or implementing even some of an assessor's recommendations on a temporary basis. Genovesi (supra); Grant v. Turgeon (supra); Mayer v. Mayer, [2002] O.J. No. 5303; Kirkham v. Kirkham 2008 CarswellOnt 3644 (S.C.J.).

[23] The general rule is that an assessor's recommendation ought not to be acted upon without a full trial except in exceptional circumstances where immediate action is mandated by the assessor's report. Both Vanbettlehem and Dr. Kase opine that the circumstances require immediate action. However, they each recommend completely different solutions. The circumstances of this case do not rise to this level particularly, given that it is impossible, at this stage, to rely upon the conclusions, opinions, and recommendations set out in either Ms. Vanbettlehem's, Dr. Holloway's, or Dr. Kase's reports. Although much time was spent on this issue, in the facta and in argument and although counsel have referred me to many cases on this point, it is clear from their submissions that counsel, particularly by the father's counsel, both recognize the limited value of the reports at this interim stage. I give no weight to the reports.

[24] Both parties sought to rely upon some of the evidence gathered by the authors of the reports. For example, the father sought to rely upon evidence that Dr. Kase obtained from collaterals about the child's wishes and the father-child bond. The mother sought to rely upon evidence gathered by Ms. Vanbettlehem from electronic communications between the father and Colin. Here, the case law counsel referred me to is less definitive. There is a developing body of jurisprudence that draws the distinction between relying on the conclusions in the report and relying on the evidence gathered by the author and reflected in the report. Justice Mitro recently stated in the case of Box v. Box, 2012 ONSC 3425 as follows at paragraph 23:

23 I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte and Kerr 2. In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances" as set out in Genovesi. In fact, "exceptional circumstances" findings were not made in either Forte or Kerr.

[25] In the instant case, the departure from the status quo sought by the father is not an insignificant one. Further, I find that the reports provide little, if any, additional probative evidence to assist me in deciding the issues on these motions. I simply do not find it necessary or particularly helpful to rely upon the reports themselves for the evidence that each party suggested was relevant in the reports. This is because the affidavits submitted by the parties in support of their positions already contain this information. In other words, it is not necessary to look to the report to find that evidence.

[26] Similarly, I do not find the affidavits about such things as the bond between the father and the child, the mother's conduct which the father claims has led to the child's estrangement, and, the father's alleged alienating conduct, very helpful either. Much of this evidence is challenged and at times conflicting in material ways. This creates the need for an evaluation of the affiant's credibility and weight to be given to his or her evidence through cross-examination. Further, even where it is neither of these things, the evidence is insufficient either singularly or collectively to support the kind of factual findings necessary for me to conclude that there exists exceptional and urgent circumstances necessitating an immediate change in the status quo. The need to make such factual findings cannot be understated as they are central to a best interest analysis and in particular to the consideration of such factors as the love, affection and emotional ties between the child and each parent and other members of the child's family who reside with the child and who are involved in the child's care and upbringing.

BEST INTERESTS ANALYSIS

[27] In reaching my conclusion that there are no compelling reasons to implement the schedule that each party has requested in their notice of motion, I have also considered the evidence available and relevant to other considerations integral to a best interest analysis as set out in section 24(2) of the Children's Law Reform Act. One of these, for example, is the evidence with respect to the ability and willingness of each parent to provide the child with guidance and education, the necessities of life and any special needs of the child. In considering the evidence on this point there was one significant difference between the mother and the father and which supports maintaining the status quo. That evidence relates to the child's educational needs, particularly the needs arising out of his diagnosis of ADHD. This diagnosis was made after the father refused to allow the child to be assessed and the court, finding his refusal to be unjustified, dispensed with his consent to the assessment. This leads to a concern that if Colin resides primarily with him, these special needs will not be given the priority and attention they require.

THE CHILD'S WISHES AND PREFERENCES

[28] I have also considered the father's argument that the child's views and preferences are a compelling reason to change the status quo pending trial. The father submitted a significant body of case law that supports the principle that a teenaged child's wishes are a significant factor.

[29] In this case Colin will be 15 years old on September 27, 2015. There is a significant amount of evidence in support of the position that Colin has at least until his contact with his father was suspended in the late spring of 2015, consistently expressed his desire to reside primarily with his father. The evidence also tends to support the father's assertion that Colin wants to have contact with his mother on an alternating weekend basis. The difficulty I have with (and the reasons why I do not find Colin's wishes to be a compelling reason to change the status quo or determinative to the outcome of this motion), include the following:

a. The issue of the weight to be afforded to his wishes is a substantive and the central issue for trial. The weight ultimately given to his wishes will depend on so many things including the weight given to the expert options and recommendations and the assessment of each witnesses credibility – all things, as the motions judge, I am not in a position to do;

b. The issue of whether Colin should continue to reside primarily with his mother is also substantive trial issue in this case. Whatever the outcome of the decision, it is going to have a profound impact upon this child's future, including his future relationship with one of his parents. It is not in Colin's best interests that such a decision should be made lightly;

c. A final decision in this matter is close at hand. The trial is scheduled to start on January 18, 2016. Colin will not be kept in limbo for very much longer;

d. Changing the primary residence of Colin at this time and at this stage in the proceedings based upon untested evidence about the independence of his wishes would be tantamount to granting summary judgment in a situation where no court would grant summary judgment; and,

e. The father's argument that the child may take matters into his own hands and leave his mother's care, thereby placing him at potential risk of harm depending on where he goes and how safe it is, is not persuasive. There is no evidence to suggest that Colin is inclined to respond to the situation in this way. Further, I have every confidence in the father, as a result of his adherence to the no contact terms in place over the last 162 days, that if he supports Colin pending the final outcome in a way that will not encourage him to leave his mother's primary care, Colin will not do so. I also have confidence, based on Colin's acceptance of the terms of no contact over the last several months, that he will accept the situation if his parents support him until the final decision is made;

f. The evidence I have about Colin's current wishes is somewhat stale. I agree with counsel for the father that it is somewhat unfair of the mother to rely upon the absence of this evidence. Although the mother's counsel did not say this, the underlying suggestion is that Colin's wishes have or may have changed. There is no evidence to suggest this either. The only current evidence I have is that which arises out of the child's contact recently with his barber. There is nothing in the evidence of that contact to suggest that Colin wishes to reside primarily with his father. What that evidence makes clear to me is that he misses his father and wants to see him. Unfortunately, this is the reality and the state of the evidence before me today; and,

g. While counsel for the father referred me to a plethora of cases that stand for the proposition that the wishes of children Colin's age should attract significant weight, all of the cases, except for one, were either trial decisions or appellate decisions dealing with trial decisions. In the one motions decision where this issue is discussed, the outcome of the motion was not reflective of the children's wishes.

[30] In these circumstances the wishes of Colin, even if they remain the same, do not create a compelling reason to do anything other than maintain the parenting arrangement that was in place prior to the no contact order being made.

DISMISSAL OF MOTIONS

[31] For all of these reasons, I dismiss the father's motion.

[32] The mother's request to change the status quo with respect to the father's access must be held to the same standard as the father's request. While the change she seeks seems minor, and for many of the same reasons the father has failed, she has not persuaded me that there is a compelling reason to make that change pending trial. I thus, dismiss her request to change the father's access schedule.

[33] I also dismiss the mother's request for the parties to attend at family counselling and for access to commence only once the first counselling session has been scheduled. The mother relies upon a letter submitted by the father's therapist, Dr. Fidler, whose involvement, as I understand it, is connected to the without prejudice implementation of the s.30 assessment. Dr. Fidler comments on the father's insight into his own actions and his willingness to change. She suggests that access can resume if the father participates in family counselling. The father submits that no weight should be given to Dr. Fidler's letter/report because it is predicated on an assumption that the section 30 assessment is reliable, and in particular, that the assessor's conclusion that the father is engaging in parental alienation, is a correct one.

[34] I agree with the father. Placing weight on Dr. Fidler's letter and recommendation and forcing the father to attend at counselling (which, based on Dr. Fidler's comments, would have as its purpose dealing with the father's alienating conduct), would effectively, allow the mother to achieve by the back door, what she has not been able to achieve through the front. That is, it would be tantamount to placing weight on the section 30 assessment. Further, to tie it to a therapist recommended by Dr. Fidler and to the resumption of the father's access, would require a finding that the responsibility for the damage to the child's relationship with his mother, is the father's. I am not, in the face of the untested evidence of the dueling experts and the state of the balance of evidence as discussed above, prepared to make such a finding, either directly or indirectly.

ORDER

[35] For the reasons set out above, I make the following order:

1. The time set for today's attendance (9:30 a.m.) is vacated;

2. The motion and cross-motion are dismissed.

3. Counsel for the parties are directed to contact the Judicial Secretary by no later than September 17, 2015, to:

   a. Confirm their mutual availability to attend at a settlement conference before Justice O'Connell on October 23, 2015;

   b. Schedule a trial management conference before me in early October;

   c. Advise if either party seeks costs of these motions so that the amount of time allotted for the trial management conference can be increased to accommodate the hearing of submission in that regard.

Released: September 3, 2015

Signed: "Justice Victoria Starr"