COURT FILE NO.: FC-19-FS000132-0001 DATE: January 11, 2023

ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT

BETWEEN:

Paul Byers Applicant

) Amanda Taerk, for the Applicant )

- and -

Leah Jo-Ann Byers Respondent

) Paul Lamain, for the Respondent )

Heard: December 21, 2022 In Writing Before: Nicole Tellier J.

RULING ON MOTION

OVERVIEW AND PARTIES’ POSITIONS

[1] The parties’ consent final parenting order dated January 11, 2021, provides for a review of their children’s residential arrangement in the spring of 2022, to be concluded before the academic year 22/23, following a focused hearing.

[2] It is well established law that a review provision does not require a party to demonstrate a material change in circumstances, before the court can consider a variation of the operative order. See Leskun v. Leskun, 2006 SCC 25. Here, the parties memorialized this principle in their final consent order. The review was to occur within a specified timeframe. And to address a problem with reviews identified by the court in Leskun, the order sets out the purpose of the review, namely whether an expansion of father's parenting time is in the best interests of the children. See Schedule A attached for the relevant excerpts from the final consent parenting order in relation to the review.

[3] The applicant (“father“) seeks an order for a Voice of the Child report (“VCR””) for the two children, R. aged 8 and A. aged 6. Specifically, he asks for the appointment of Ms. Seidel, whose qualifications to fulfill this role are conceded by the respondent (“mother”) and who has consented to undertake this task.

[4] The mother objects to a VCR. Her main concern is that children are being influenced by their father and thus she calls into question the independence of what the children might say. The father’s original submissions contemplated that the mother would seek an order for a parenting assessment. The mother’s responding materials do not propose an alternative method to obtain this evidence.

PRIOR PROCEDURAL RULINGS

[5] The review provision of the operative order requires the parties to attend a minimum of two mediation sessions before coming back to the court. The court received a query on behalf of the mother by counsel, who was not yet on the record, about the future court process. By the time of this query, the contemplated time frames for having completed the review had passed. I use the word query as the mother did not bring a 14B motion seeking directions, as she ought to have done. Nonetheless the court made a ruling which provided directions regarding next steps.

[6] Given the nature and scope of the review, as well as the missed timelines, I determined that once the parties had fulfilled the mediation requirements, they should move towards scheduling a focused hearing. This is a review of a single issue, in the context of a motion to change. Therefore, I deemed a case conference was unnecessary, if two mediation sessions failed to result in resolution. Future steps are addressed below.

[7] The court’s endorsement, dated September 14, 2022, reminded the parties that the judge conducting the hearing is mandated to consider the children's views and preferences and went on to suggest that a VCR might be an effective and appropriate process to address that piece of the evidence. The father took prompt steps to seek mother's consent to a VCR. He proposed it be done on a private retainer basis to avoid any possible delay if the order is made for a VCR through the Office of the Children’s Lawyer (“OCL”). He provided the names of four qualified mental health professionals (“MHPs”), thereby enhancing the parties’ choice of the MHP to meet the children and prepare a report. He offered to pay the entire cost.

[8] In the absence of mother's consent to this process, the father brought a motion in in writing under Rule 14(10). Counsel for the respondent mother objected to the motion proceeding on two grounds. First, her counsel asked for more time to respond as his client was away; this relief was granted. Second, he argued that the motion was improperly brought under Rule 14(10) as it was not procedural in nature, and it was opposed and, therefore, it should be argued orally.

[9] Counsel for the father submitted that the law on the court’s ability to order a VCR as part of a procedural motion was settled in Canepa v. Canepa, 2018 ONSC 5154. I concurred, particularly in light of Rule 2 of the Family Law Rules, which demands an efficient allocation of court resources, and the inordinate delay if the motion was to be heard orally, given the court’s current scheduling challenges. Delay in proceedings almost invariably works contrary to children's best interests. The court ordered that this motion proceed in writing.

DISPOSITION SUMMARY

[10] Ms. Seidal shall be appointed to interview R. now aged 8, and A. age 6, to ascertain her views and preferences about his residential schedule during the school year. She shall prepare and submit a VCR. The procedure to be followed shall be the same as that described on the website of the Office of the Children's Lawyer, attached as Schedule B, and subject to further court directions as elaborated below.

ANALYSIS

How to Ascertain the Child’s Views and Preferences

[11] Section 16(3)(e) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) requires the court to consider the views and preferences of the child at the heart of any parental dispute, as part of its best interests’ analysis. There are several ways the court can receive this evidence, namely:

1. through a parenting assessment;
2. through the appointment of the Children’s Lawyer, with or without clinical assistance;
3. through a Voice of the Child report;
4. through one or more judicial interviews;
5. through any admissible hearsay statements made by the child(ren) to their parent(s) or other witnesses; and
6. through the child’s direct testimony in court.

[12] These methods are not necessarily mutually exclusive. Several statutes provide a patchwork of governing provisions for the receipt of this evidence, including the Children’s Law Reform Act, R.S.O. 1990, c.C.12, the Courts of Justice Act, R.S.O. 1990, c. C.43, the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) and the Evidence Act, RSO 1990, c E.2. Each approach has it own benefits and drawbacks.

Which Approach is Best Here?

Should there be a Parenting Assessment under section 30 of the CLRA

[13] Although the mother has not asked for a parenting assessment, the father urges the court to reject this method. He submits it is an intrusive process, which entails delay and costs.

[14] In Glick v. Cale, 2013 ONSC 893, Kiteley, J. provides a comprehensive summary of the jurisprudence in which a CLRA section 30 assessment was under consideration. The court rejected the notion that a clinical issue is a prerequisite to making such an order. At paragraph 48, the court provides the following factors for consideration:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation? (b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court? (c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it? (d) Do the parents have a mutual disregard for the other parent’s ability to parent? (e) Do the parents blame each other for the dysfunction each describes? (f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents? (g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs? (h) What is the age of the child at separation and at the time of the request for the assessment? (i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents? (j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child? (k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment? (l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access? (m) What is the estimated cost? Do the parents have the financial resources to pay that cost? (n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial? (o) Is an assessment in the best interests of the child?

[15] The context here is that the parents have joint decision-making authority and a residential arrangement whereby the children are in their parents’ care equally during all holidays. During the school year, father's parenting time is more limited, with the children being in his care 10 days in a 28-day cycle. This arrangement was in place for some months before the final order was made. The father's position on the motion to change is the same as it was in the original application, namely, that that the children should be in their parents’ care equally throughout the year. In sum, the sole issue for determination is whether it is in the best interests of the children that their time in their father’s care be increased by 4 days and nights per month, during the school year.

[16] There is no evidence before the court that either child has special needs. There is a reference to the parents agreeing the children would benefit from counseling, without elaboration.

[17] The father’s affidavit portrays a positive, functioning, co-parenting arrangement. He sees no reason for the children's parenting time with him not to be expanded now that they are older. He states the children benefit from being with both parents and believes this is what they want. By contrast, the mother’s affidavit gives examples of their son R. behaving in a manner that is disrespectful and sometimes distant towards her, which she believes stems from his father's openly negative attitude towards her. This suggests the animosity that was present between the parties at the height of their post-separation conflict, has not fully abated.

[18] Section 30 of the CLRA clearly sets out the purpose of an assessment, which is to identify the needs of the child and determine each of the parents’ willingness and ability to meet those needs. There is nothing in this provision that states part of the assessment process is to ascertain the views and preferences of the child.

[19] Typically, these assessments entail multiple interviews with the parents, other family members and the children’s service providers. This takes time. One of the disadvantages of obtaining a more detailed parenting assessment is that the assessor’s expert report it is not intended for use other than at trial, unless there are compelling circumstances to rely on it easier in the proceeding, without the benefit of cross-examination. See Grant v. Turgeon, 2000 ONSC 22565. Often by the time a matter is ready to be tried, the information in the assessment is out of date, including the information, if any, about the children's views and preferences.

[20] When considering the appointment of any expert, the court must determine whether the evidence from that expert is necessary for the court to make its determinations. This gatekeeping function is essential to the fair and appropriate allocation of judicial resources, to any particular dispute. Given the narrow scope of the issue in this review proceeding, such an expansive assessment is neither necessary nor proportionate.

Should there be a VCR? If yes, what is its scope?

[21] From May 2016 to March 2017 there was a Voice of the Child pilot project at 11 court sites in Ontario, at different court levels. The project received a positive assessment by Dr. Rachel Birnbaum and Professor Nicholas Bala in Views of the Child Reports: The Ontario Pilot Project, Int’l J of Law, Policy & The Family, 2017 31, 344-62. The use of VCRs is now formally part of Ontario’s legislative patchwork aimed at ensuring children’s views are heard. The use of these reports has proven to be an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences. The directive that the court consider the views and preferences of children as part of its best interest analysis has been part of the statutory framework for decades. The more recent jurisprudence reveals greater attention to this aspect of the multi- factorial list the court must consider. Further, more judges are recognizing that in addition to a child's right to be heard, the child has a right to participate in the process, which may include their participation at conferences, in addition to trial. [1]

[22] The main drawback to this process is that it is acontextual, insofar as the MHP does not meet with the parents or gather information through other sources, including documents. On the other hand, the sole focus of the exercise, is to hear from the child through a person who is trained in interviewing children, precisely to elicit information regarding their views and preferences. Apart from testifying in court or a judicial interview, a VCR is the most direct way for the court to receive this evidence from a neutral source.

[1] See: G. (B.J.) v. G.(D.L.), 2010 YKSC 44; Michel v. Graydon, 2020 SCC 24; Medjuck v. Medjuck, 2019 ONSC 3254; Ontario (Information and Privacy Commissioner), 2018 ONCA 559, where the child’s right to be heard and to participate is central to the analysis.

[23] I turn now to the mother’s concern about the effect of parental pressure on the child whose wishes are being sought, particularly in relation to R. This kind of concern is a commonly expressed by parents. MHPs, lawyers and judges who meet with children to canvass their views and preferences are attentive to the potential impact of parental and other influences on the child’s expressed wishes. The question of whether a parent has made statements or engaged in conduct that might impact the independence of a child’s views and preferences can certainly be explored at any hearing. In my view, a potential concern about the independence of a child’s statement should not result in a refusal to meet the child to try to ascertain his or her views; rather it is a factor that goes to the weight to be given to those expressed views.

[24] The father conveyed to the court that Ms. Seidel indicated she would interview A., who turned 6 this summer. While there are no specific guidelines directing the Superior Court, Family Division regarding at what age it might be appropriate for children to be interviewed by the judiciary, I believe that generally judges follow the guidelines prepared for the Ontario Court of Justice, which support interviewing children 8 years and older.

[25] The OCL does not have hard age guidelines for VCR reports. The court appreciates that every child is unique, including their maturity level, at any given chronological age. While I am concerned that A. is too young, Ms. Seidel has indicated that she will interview A., as well as her brother. Accordingly, I will reluctantly grant the order requested so that both children are interviewed. If Ms. Siedel finds A. is too immature to convey her views and preferences in any meaningful way, she may abort the interview or address those concerns in her report.

[26] To address the mother’s concerns about this process, the father submits that Ms. Siedel can contact R.’s therapist. As can be seen from the OCL website describing the VCR process, it does not include interviewing collateral witnesses. See Schedule B attached. In my view, it serves the administration of justice and the best interests of children, if, once a methodology has been selected to assist the court, that a relatively standardized, uniform approach to that methodology be employed. This serves to minimize the possibility of later disputes about the weight to be given a report based on perceived methodological deficiencies or anomalies.

[27] I also decline to make an order for a VCR, which confers discretion on the privately retained MPH to contact R’s therapist on the grounds of privacy, (assuming the parents agreed to sign the necessary consents, if asked). An essential aspect of a therapeutic relationship is the confidential, private nature of the dialogue between the MHP and his or her patient or client. The recipients of therapy, even children, are given some assurances about the confidential nature of the relationship and the clinical notes and records related to their therapy. The principles for balancing the need for disclosure of relevant heath records and the privacy interests of the person or party engaged in therapy are well established. See M(A) v Ryan, 1997 SCC 403 and M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597. And Rule 19(10) of the Family Law Rules ensures that third party health record keepers be given notice of any motions to secure their records, so that they can take a position about production, should they choose to.

[28] There is no motion before the court about the production of the children’s therapy records and there has been no discussion about whether the trial judge ought to hear from R.’s therapist as part of the motion to change. I decline to make any order for the VCR which would involve R.’s therapist, contrary to the standard VCR methodology, but more importantly, without notice to his therapist. Indeed, it may be even appropriate for R. to have a say in whether his therapist’s evidence or the therapy notes should form part of the evidence. See L.S. v B.S. 2022 ONSC 5796 for a comprehensive discussion of children’s consent regarding heath related decisions and disclosure in the family law context. These issues can be canvassed at the Trial Scheduling Conference.

CONCLUSION

[29] Based on the foregoing I make the following order:

1. Ms. Seidal shall interview R. born April 22, 2014, and A. born July 8, 2016 twice and prepare a VCR report to ascertain their views and preferences regarding their residential arrangement during the school year.
2. Ms. Seidel shall follow the methodology set out on the OCL website attached as Schedule B. Additionally, R. and A. shall be brought to the MHP once by his mother and once by his father.
3. The VCR report shall be served on the parties and filed under, no later than February 15, 2023.
4. The cost of the report shall be paid by the father.
5. Following the release of the VCR, the parties shall attend two mediation sessions with Vicki Visca, the costs of which shall be shared equally by the parties. Ms. Visca shall be provided with the VCR.
6. The parties shall attempt to settle the issue of costs of this motion. Absent consent, the father shall file his cost submissions no later than January 30, 2023. The mother shall file her reply submissions no later than February 15, 2023. These submissions shall include a detailed Bill of Costs and any offers to settle.
7. I shall continue to case manage this matter.
8. There shall be a combined settlement conference and TSC before me on May 26, 2023, at 10:00 am. The parties shall serve and file both a SCB and TSEF.

January 11, 2023

Schedule A: Review Provisions from Final Consent Order dated January 21, 2021.

Review

24. The parenting time set out in this Order shall become reviewable without having to establish a material change in circumstance no earlier than June 10, 2022. The review shall assess whether an increase of the father’s parenting time is in the children’s best interest.

25. Prior to either party commencing a motion to change under this provision, the parties shall attend at least 2 mediation sessions with Vicky Visca and Associates, which shall be arranged by April 2022, if a party has indicated their desire to seek a review. If a review proceeding is initiated, the parties shall participate in a focussed hearing prior to the academic year 2022/2023.

Schedule B: Except from OCL website on VCRs

Voice of the child report

In some cases, the clinician will be assigned to only complete a voice of the child report. This is a short report written for the court that summarizes a child’s statements about an issue in their parenting time, decision-making responsibility or contact case.

The report is typically done for children over the age of seven. In this type of report, there are no:

• formal interviews of the parties
• observations visits
• gathering of collateral information
• disclosure meetings
• recommendations

Step one: the judge requests a Voice of the Child Report

If the judge makes an order requesting a voice of the child report, the court will identify the issues for the report in the voice of the child endorsement form and send it to the OCL.

Step two: the parties must complete the Voice of the Child Intake forms

The parties will need to:

• complete the voice of the child intake form
• send it to the OCL at OCL.LegalDocuments@ontario.ca within one business day of the order
  • if completed before leaving the courthouse, the court staff can send the intake form with the court order to the OCL at the same time
  • if not completed at the courthouse, you must send it to the OCL at OCL.LegalDocuments@ontario.ca.

Step three: the Office of the Children’s Lawyer’s decision

The OCL will review the intake forms and the court order. If your case is accepted, an OCL clinician will be assigned. The OCL will inform all parties and the judge of the decision in writing.

Step four: the development of the Voice of the Child Report

Once the case is accepted the clinician will contact the parties to:

• introduce themselves
• describe the process
• gather limited information about the reason for the referral
• ask if a Children’s Aid Society (CAS) is actively investigating
• set the date, time and location for the child interviews

Step five: the child interviews

The child or children will have two interviews with the clinician, scheduled for two separate days. Each party is responsible for arranging the interviews with the clinician.

At the end of each interview, the clinician will review the statement with the child to confirm accuracy. The clinician will explain to the child that none of the information gathered during the interviews will be kept confidential. If the child makes a statement of abuse, neglect or maltreatment, the clinician must inform the local Children’s Aid Society.

Step six: completion of the report

The clinician will inform the parties when all the interviews are complete. The report is submitted to the court and sent to the parties within 30 days after the assignment to a clinician.

COURT FILE NO.: FC-19-FS000132-0001 DATE: January 11, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Paul Byers

- and - Leah Jo-Anne Byers

RULING ON MOTION

Nicole Tellier J. Released: January 11, 2023