Court File and Parties

COURT FILE NO.: FC-09-1421-4 MOTION HEARD: 20190423 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Becky Helen Walker, Applicant AND: Aron George Walker, Respondent

BEFORE: Master Kaufman

COUNSEL: Steven A. Fried for the Applicant Aron George Walker, representing himself

HEARD: April 23, 2019

REASONS FOR DECISION

[1] The Applicant brings this motion for an Order appointing Ms. Nadine Crowley, a social worker, to complete a Voice of the Child Report (“VOC”). For the following reasons, I am declining to make the order sought because it is not within a Master’s jurisdiction. I am ordering that the matter be transferred to a judge to be dealt with based on the parties’ written materials.

Background

[2] The Applicant alleges that the parties have been in a high conflict situation and that they disagree on many issues affecting the children. She argues that the children, aged 16 and 13 years old, should have their views and preferences taken into account.

[3] On November 24, 2011, Justice Toscano-Roccamo ordered that the final determination with respect to claims of custody and access and the children’s residential arrangements would be determined once the Office of the Children’s Lawyer (“OCL”) was appointed. The Order provided that if the OCL did not get involved, then the Applicant shall cover the cost of the assessment (unless the Court orders otherwise at a later date).

[4] In October 2018, the Applicant attempted to retain Ms. Crowley’s services but the Respondent would not sign the consent form. The Respondent’s grounds for opposing the motion are that, contrary to what is stated in the Applicant’s affidavit, the children suffer from mental health issues, namely “moderate depression and moderate anxiety” in the case of Janelle and “major depression and suicidal ideation” in the case of JoHanna. The Respondent questions whether a VOC report is appropriate in the circumstances. The Respondent also referred me to an e-mail from Janelle’s counselling provider, which states that it is a conflict of interest for the same therapist to see both siblings. The Respondent argues that it would similarly be a conflict of interest for Ms. Crowley to prepare a VOC Report which concerns both siblings. Finally, the Respondent does not believe that the relationship is a highly conflictual.

Family Case Manager’s jurisdiction to make the order sought

[5] The motion was argued as an opposed procedural motion. The Applicant referred me to Canepa v. Canepa 2018 ONSC 5154 (S.C.J.) which was an opposed motion in writing (14B) for an Order for a VOC report. Justice Kiteley concluded that the subject matter of such a motion was procedural and uncomplicated, and that the Court could order a VOC report absent the parties’ consent pursuant to Rule 20.1(3) of the Family Law Rules O. Reg 439/07 (the “Rules”). This rule provides that:

20.1 (3) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case. O. Reg. 383/11, s. 6.

[6] Based on this authority, it appears that this motion is procedural in nature. However, because the motion is brought before a Master, the power to grant it must be conferred on a Family Case Manager pursuant to Rule 42. This Rule bestows upon persons appointed under s. 86.1 of the Courts of Justice Act (i.e. Case Management Masters) the jurisdiction to hear motions and conduct conferences in certain family law proceedings. Under Rule 42(4)(b), Family Case Managers may only exercise the powers and carry out the duties and functions specified under Rule 42. When it comes to motions, Rule 42(8) provides that Family Case Managers may only make certain specified orders:

42 (8) If a motion under rule 14 is made in a case under an Act to which this rule applies, the Family Case Manager may make only the following orders:

1. An order under rules 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 18, 19 and 20.

[7] In my view, Rule 20.1 is separate from Rule 20, and concerns a different subject matter (Experts vs. Questioning a witness and disclosure). I have considered the other orders listed under subrule 42(8) but none of them apply to this motion.

[8] I would have been inclined to grant the motion had it been within the Family Case Manager’s jurisdiction. Under subrule 42(16) the Family Case Manager may, at any time, order that a matter assigned to him or her be adjourned and sent to a judge. Accordingly, I will order that the Applicant’s motion be referred to a judge to be dealt with in writing. In my view, this is the most efficient way of proceeding as the parties’ positions are fully and adequately set-out in their written materials. I am also ordering that the Respondent’s affidavit form part of the continuing record. While the Respondent did not file his materials on time and the Applicant objected to their filing, this will ensure that the judge considering the motion is able to appreciate the Respondent’s position.

[9] Costs of the motion will be reserved to the judge hearing the motion.

Master Kaufman Date: April 23, 2019