Court File and Parties
COURT FILE NO.: FS-14-395354 DATE: 20180831 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jennifer Gajda, Applicant AND: Matthew Giosure Francis Canepa, Respondent
BEFORE: Kiteley J.
COUNSEL: Michelle Sample, for the Applicant Adrienne Lee, for the Respondent
HEARD: in writing
Endorsement
The parties have children born May 23, 2010 and February 1, 2012 who are now 8 and 6 years 7 months.
The Respondent has brought a form 14B motion for an order for a Voice of the Child Report. The Applicant opposes it on procedural and substantive grounds.
The parties married in August 2008 and separated in August 2013 when the children were 3 years and 18 months old. The application was commenced in 2014. A key issue has been the Respondent’s parenting time. The applicable interim order is dated August 1, 2014 and provides that the Respondent has the children on Tuesday and Wednesday from 4:30 to 6:30 and Friday at school to Sunday evening. The Applicant lives in the wet end of Toronto and the Respondent lives in Brampton which is a 25 minute drive. The Respondent has some travel challenges particularly in the two rush hour visits. He is seeking to extend his parenting time to return the children on Monday morning. He has re-partnered and has a daughter born of that relationship.
On May 25, 2018, I held a Trial Management Conference at which I set the date of October 1 for the trial of parenting issues to be reflected in a final order. I made this endorsement:
This was a Trial Management Conference but the discussion focused on settlement of the parenting schedule and briefly an issue about the amount of cs (child support) which is dependent on Respondent’s disclosure. I am setting a trial date but will remain optimistic that it is not required. . . . TMC before me if available on Wednesday August 29, 2018 at 10:00.
In that TMC/SC, the Respondent had suggested that the parents agree to a Voice of the Child Report. Counsel for the Applicant advised that she was surprised by the suggestion and that she had no instructions to agree to a Voice of the Child Report and she relied on rule 17(8)(b.1). On that basis, I made an order that counsel for the Respondent may bring a 14B motion for an order for a Voice of the Child Report, that I expected it would be opposed, and that motion would be brought to my attention.
In a letter dated June 4, 2018, Ms. Lee wrote to Ms. Sample and followed up about the Voice of the Child Report. Ms. Sample said she would respond soon but had not done so.
On Friday August 24, 2018, counsel for the Respondent served a form 14B motion and affidavit sworn August 23 in support of the Respondent’s motion for an order for a Voice of the Child Report.
Ms. Sample did not want to have the 14B motion considered at the TMC on August 29. She said her client had been preoccupied with preparing for and attending at this TMC and, in any event, had not had the full four days to respond. She asked that it be postponed so that she could make procedural and substantive objections.
When Ms. Lee had served the 14B motion, she had not served a factum. I made an order that she could file a statement of law and/or authorities by August 30 at noon and that counsel for the Applicant could serve and file responding material and factum no later than August 30 at 4:00 p.m. Both parties complied.
A. Procedural Fairness
The first procedural fairness issue is the Applicant’s position that I ought not to hear the motion because I had participated in settlement discussions on May 25.
Rule 17(24) provides that a judge who conducts a settlement conference about an issue shall not hear the issue (at trial or on motion), except in relation to child protection cases. Counsel for the Applicant takes the position that on May 25, 2018 I conducted a settlement conference on the issue of the Voice of the Child Report and that I was not permitted to hear the motion on that subject.
The word “issue” is used elsewhere in relevant rules. Pursuant to rule 17(4), the purposes of a case conference include exploring the chances of settling the case; identifying the issues that are in dispute; exploring ways to resolve the issues; ensuring disclosure; identifying any issues relating to any expert evidence; noting admissions that may simplify the case; setting the date for the next step in the case; setting a specific timetable for the steps to be taken before it comes to trial and giving directions with respect to any intended motion.
Pursuant to rule 17(5) the purposes of a settlement conference include exploring the chances of settling the case; settling or narrowing the issues in dispute, ensuring disclosure; settling or narrowing any issues relating to any expert evidence; noting admissions if possible; obtaining a view of how the court might decide the case; considering any other matter that may help in a quick and just conclusion of the case.
Pursuant to rule 17(6), the purposes of a trial management conference include exploring the chances of settling the case; arranging to receive evidence by a written report, deciding how the trial will proceed, exploring the use of expert evidence or reports at trial.
The word “issues” appears in rule 17(4) and 17(5) while the word “case” appears in all three subrules. The words “case” and trial” appear in subrule 17(6). The challenge is to determine what is meant by “issue” in subrule 17(24). In my view, “issue” must be interpreted to mean substantive issues such as custody and access or parenting, and equalization of net family property and child and spousal support. In other words “issues” relates to the generic legal issue involved in the “case” and in the “trial”. “Issue” cannot be interpreted to mean procedural matters such as a request for a s. 30 assessment or for a Voice of the Child Report or for disclosure or striking an Answer. To interpret the word “issue” so broadly as to encompass all possible procedural issues in the case would undermine efforts to provide single judge case management which is essential in family law. Accordingly, subrule 17(24) does not apply.
The second procedural challenge was that this motion for a Voice of the Child Report is not properly a form 14B motion and that it ought to be converted to a hearing where submissions could be made. In my view, the subject matter of this motion is procedural and it is uncomplicated. Counsel for the moving party did provide a statement of law and authorities followed by the statement of law and affidavit of the applicant. The written submissions are clear and thorough. Neither party’s position would be enhanced if counsel were each given 10 or 15 minutes to make what would be repetitive oral submissions. It is in keeping with the primary objective of the Family Law Rules, that the matter be dealt with as a 14B motion.
B. Jurisdiction to Order Voice of the Child Report
Counsel for the Applicant took the position that the court does not have jurisdiction to make an order for a Voice of the Child Report unless the parties have consented.
In Svirsky v. Svirsky, 2013 ONSC 5564, I observed in paragraph 21 that there was no statutory authority to appoint a person to prepare a Voice of the Child Report. In that case, the jurisdiction to do so was not argued because the parties had agreed and the only issue was the selection of the expert. I am satisfied that there is regulatory authority, namely that rule 20.1(3) gives the court the authority to appoint an expert to inquire into and report on a question of fact relevant to an issue in the case, namely whether either or both children have any views or preferences as to increasing the time that they see their father.
C. Appropriateness of Voice of the Child Report
In her factum, counsel argued that the children are too young to engage in the process in a meaningful way and that the Voice of the Child Report is non-evaluative and will not provide this Honourable Court with recommendations and/or any consideration of the independence of the children’s views. Counsel argues that there can therefore be little utility to such a report and it would be unreasonable to involve the children in the process where there is little to be gained.
Counsel for the Applicant has referred to the decisions in Nova Scotia where the case law and provincial guidelines are helpful. I agree that they provide a useful framework.
The parties entered into a final order dated November 27, 2015 with respect to the equalization of net family properties, child support and spousal support and the parenting schedule other than the regular mid-week and weekend schedule. The temporary order dated August 1, 2014 provided for the regular schedule at a time when the children were 4 and 2 ½ years old. Four years later, the parties are still parenting pursuant to that temporary order. The parents have not succeeded in negotiating material changes to the regular schedule. It is appropriate to introduce a professional third party. This is not a “fishing expedition”. The information sought is not complex: having maintained the status quo for 4 years, do the children have any views and preferences around changes.
Although the Respondent does not seek to engage the Office of Children’s Lawyer, the Children’s Lawyer has offered to provide Voice of the Child Reports for children 7 and older. The older child is 8 ¼ and falls into that category and ought to be given an opportunity to have a voice. The younger child is 6 years and 7 months. Dr. Walker-Kennedy, who has worked with the OCL and has experience in such reports, is content to undertake the report although the younger child is short of 7 years by 5 months.
The Applicant is concerned that the Respondent is influencing the children to express a desire to see their father more and, because the Voice of the Child Report is not “evaluative”, the author will not explore whether the responses are meaningful and well-reasoned. I agree that the Voice of the Child Report could be used by a parent to manipulate a child to parrot what the parent wants. Indeed, there are situations where one parent has alienated a child or has the potential to alienate a child against the other parent and there is a risk that the Voice of the Child Report would serve to further the goals of the alienator parent. That is not the case here. Both parents enjoy wonderful relationships with their children. There is no suggestion that either is trying to reduce or eliminate the relationship of the other with the children. This is not an investigation into parenting capacity. The parents implicitly if not explicitly acknowledge that the other is capable of identifying and responding to the needs of the children. This is an exploration of increased parenting time. This is a proper role for a Voice of the Child Report.
D. Payment for the Report
- In his Notice of Motion the Respondent has offered to pay 100% of Dr. Walker-Kennedy’s fees. The Applicant takes no issue with that.
E. Costs of the Motion
In his Notice of Motion, the Respondent asked for costs in the amount of $500. He has been successful and is presumed entitled to costs. The amount requested is modest.
It was unfortunate that the motion was served without sufficient time for the Applicant to have responded before the TMC on August 29. Furthermore it caused counsel for the Applicant to have to react to the motion while her focus and that of her client was on the TMC. I have not accepted any of her reasons for opposing the motion but she was entitled to an opportunity to make them. This is not a case for costs.
Order
ORDER TO GO AS FOLLOWS:
Dr. Susan Walker-Kennedy shall prepare a Voice of the Child Report as to the views and preferences of the children with respect to changes in the current parenting schedule.
The Respondent shall pay 100% of Dr. Walker-Kennedy’s fees for the Voice of the Child Report.
No costs of the motion.
KITELEY J. Date: