Court File and Parties

Windsor Court File No.: 624/11 Date: 2012-11-06 Ontario Court of Justice

Between:

W.D.C. Applicant,

— AND —

J.L.M. Respondent.

Before the Honourable Justice Barry Tobin

Heard on: October 1, 2012

Counsel:

• David Seaton, for the applicant, W.D.C.
• Tanya McNevin, for the respondent, J.L.M.

ENDORSEMENT

1: ISSUE

[1] The issue on this motion is whether the access provisions of a final order should be varied pending trial, based on a s. 112 report recently released.

2: FACTS

[2] The parties are the parents of two children, a son C.A.C., age 13, and a daughter, S.Z.C., age seven.

[3] Following the parties' separation, they entered into Minutes of Settlement which were incorporated into the order of Justice Kowalyshyn dated September 1, 2010. The order provided, in part, that the parties were to have joint custody of the children with their principal residence being in the respondent's home. Access by the applicant was also defined in the order. He was to have the children in his care on alternate weekends and holidays.

[4] In September 2011, the respondent brought a motion to change the order based upon her concerns for the safety of the children, including an allegation of sexual abuse of the daughter by the applicant.

[5] In November 2011, while the motion to change was outstanding, the applicant did not return the child, C.A.C., to the respondent following a scheduled weekend access visit. As a consequence of this, the respondent brought a contempt motion against the applicant. The first return of the motion was on December 15, 2011.

[6] On December 20, 2011, Justice Phillips ordered that the access provisions of the September 1, 2010 order be suspended. Access remained suspended until March 27, 2012. On that day, I made an order that the applicant have access to the children on alternate Saturdays from 9:00 a.m. until 8:00 p.m. as well as reasonable telephone access.

[7] On May 4, 2012 the Children's Lawyer assigned a clinical investigator to investigate and report pursuant to s. 112 of the Courts of Justice Act. The report was filed with the court on September 6, 2012.

[8] Following the receipt of the s. 112 report the respondent brought this motion to "suspend or terminate the applicant's access to the children…pending a determination of this matter at Trial."

3: SECTION 112 REPORT

[9] The report raises concerns regarding the applicant's behaviour toward the children.

[10] The report contains information that the child, S.Z.C., may have been sexually abused by the applicant. He denies sexually abusing the child. The investigator stated that the applicant minimized his actions which gave rise to the allegations: he stated, "It was no big deal, it was just over clothes."

[11] With respect to the child C.A.C., the investigator reported that the applicant appears "to lack insight or understanding into the impact of his behaviour" and that it appears that he "is attempting to alienate [the respondent] and that [C.A.C.] has begun to align with his father."

[12] The following are the investigator's recommendations:

1. Ms. J.L.M. to have sole custody of the children, C.A.C. and S.Z.C.

2. Mr. W.D.C. should not have access to the child, S.Z.C. Should S.Z.C.'s sexual abuse counsellor recommend it and should Mr. W.D.C. participate in counselling and demonstrate an understanding of his children's emotional development, appropriate parenting practices and boundaries supervised access could occur.

3. Mr. W.D.C. to have access to the child, C.A.C. twice a month for a two to four hour period at a Supervised Access Program. Should Mr. W.D.C. participate in counselling and demonstrate an understanding of his children's emotional development, appropriate parenting practices and boundaries, this access could be gradually expanded to unsupervised.

4. Ms. J.L.M. to participate in counselling to assist her in supporting the children with the change in access to their father. Ms. J.L.M. to also consider participating in a parenting program to assist her in enhancing her parenting skills.

5. The child, C.A.C. to continue to participate in counselling to assist him in dealing with his emotional issues and the ongoing conflict between his parents.

6. The child, S.Z.C. to continue to participate in sexual abuse counselling.

7. Mr. W.D.C. to participate in counselling to assist him in understanding healthy sexual boundaries, to assist him in gaining a better understanding of his children's emotional development, and assist in understanding the impact of parental conflict on children.

8. Office of the Children's Lawyer report will be provided to the Windsor-Essex Children's Aid Society.

[13] Subsequent to the release of the report, the applicant agreed not to exercise access to S.Z.C. pending the trial of this matter.

4: LEGAL CONSIDERATIONS

4.1: Temporary Order Changing a Final Order

[14] A court may not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interest of a child: See Children's Law Reform Act, s. 29.

[15] The onus on a motion to change is on the parent seeking the variation to establish that (a) there has been a material change since the making of the existing order; and (b) that the material change is such that the existing child care arrangements contained in the order are no longer in the children's best interest. See Gordon v. Goertz, [1996] 2 S.C.R. 27 and Crawford v. Dixon, [2001] O.J. No. 466 at para. 10.

[16] In a proceeding under Part III of the Children's Law Reform Act, the court may make such interim order as it considers appropriate: See Children's Law Reform Act, s. 72.

[17] A temporary order pending trial may be made in a motion to vary a final custody or access order under the Children's Law Reform Act, if the court finds that there has been a material change in circumstance which requires the existing order to be changed. See Crawford v. Dixon, supra, at para. 19 and Swan v. Swan, 27 R.F.L. (5th) 449.

4.2: Section 112 of the Courts of Justice Act

[18] Section 112 of the Courts of Justice Act provides that in a proceeding where there is a question concerning the custody of, or access to a child, the Children's Lawyer may cause an investigation to be made and a report prepared. The report may include recommendations regarding custody or access.

[19] A report from the Children's Lawyer has been described to be "more in the nature of a fact-finding mission" while a s. 30 assessment is "a more clinical exercise." See Richardson v. Gardner, [1995] O.J. No. 829, 11 R.F.L.(4th) 292 at para. 35 and Rice v. Abbott, [2006] O.J. No. 4889.

[20] Even though there is this difference between a s. 112 report and a s. 30 assessment, they need not be distinguished when considered in motions for temporary orders. See J.L.M. v. P.D.A.B., 2012 ONSC 4696 at paras. 15 and 16.

[21] The use that can be made of reports or assessments on motions for temporary orders has been comprehensively canvassed in a number of cases.

[22] One line of cases holds that these reports should not be used on interim motions except in exceptional circumstances where immediate action is needed. See Genovesi v. Genovesi, 41 R.F.L. (3d) 27.

[23] Recently, the issue was considered in Bos v. Bos, 2012 ONSC 3425, [2012] O.J. No. 2704, a decision of Justice Mitrow and J.L.M. v. P.D.A.B., supra, a decision of Justice Pazaratz.

[24] In Bos v. Bos, supra, Justice Mitrow rejected an inflexible rule that assessments could only be used in exceptional circumstances. The court stated at paras. 23 and 24:

23 I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte v. Forte, [2004] O.J. No. 1738 and Kerr v. Hauer, 2010 ONSC 1995, [2010] O.J. No. 1506. 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.

24 The court has a duty to make orders in a child's best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[25] In J.L.M. v. P.D.A.B., supra, Pazaratz J. observed at para. 25 that the majority of cases which considered this issue required a "...high threshold for interim use of assessments..." Reference was made by the court to F.I. v. S.P.P., 2010 CarswellOnt 8025 (O.C.J.) where Justice Wolder stated at paras. 13 and 18 as follows:

[13] I am persuaded that, although a motion for temporary relief has to be based on the child's best interests, 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 interests.

[18] ...I find that this issue should not be tried in a summary manner by way of this motion for temporary relief. In coming to this conclusion, I adopt the observation of the late Professor James G. McLeod in his "Annotation" to Linton v. Clarke, 50 R.F.L.(3d) 8 at p. 10 where he stated:

If reports are ordered when the litigation begins, parties might submit them as evidence on interim motions. But unless a report reveals that the child is at risk or that he or she would decidedly benefit from a change, it should not form the basis for varying interim custody. Reports are often unclear and are not tested by cross-examination before the trial. In most cases, it is better to wait until the trial to determine the effect of the report.

[26] Justice Pazaratz concluded at paragraph 27 as follows:

27 There is broad agreement in the cases that motions for interim implementation of assessment reports should be discouraged. Parties should not perceive the arrival of an assessment report as creating an automatic strategic opportunity to secure a more favourable status quo, heading into trial.

[27] The practice of bringing motions based on these reports on an interim basis in order to gain an advantage by establishing a new status quo is to be discouraged.

[28] I will consider the information contained in the s. 112 report along with other evidence in the record in determining what, if any, change in access is needed to meet the best interests of the children pending trial. The test I will apply is the one articulated by Justice Mitrow in Bos v. Bos, supra, as set out above. A flexible approach which does not encourage "matter of course" interim motions to change a final order will best allow a court to determine whether a change should be made in the best interests of the child at this stage of the case.

5: ANALYSIS

5.1: Has there been a material change in circumstances?

[29] I find that there has been a material change in circumstances since the order of Justice Kowalyshyn was made on September 1, 2010.

[30] This order provides for joint custody. The uncontradicted evidence is that the parents are unable to communicate. They end up in arguments when they try to communicate.

[31] The child S.Z.C. is in counselling due to allegations of sexual abuse by the applicant. Those allegations are denied by him. He is content to forego access with her while this case is ongoing.

[32] The child C.A.C. is engaging in self-harming behaviour. He has expressed to his parents and the clinical investigator that he wishes to reside with his father. The parents offer different reasons for his request to change residence.

5.2: Is a change in access required on a temporary basis pending trial?

[33] The s. 112 report is untested by cross-examination. Many of the facts and conclusions contained within are contested by the applicant.

[34] The s. 112 report and affidavits of the parties raise matters of concern that are not in dispute:

(a) The parents are unable to communicate without argument;

(b) The child, C.A.C., is engaging in self-harming behaviours. The applicant gave C.A.C. a small knife and he did not see this as a problem;

(c) The father has made negative statements to or in front of the child, C.A.C., about the respondent. The clinical investigator called these remarks disturbing. The applicant called them joking references to the differences between the respondent and him;

(d) The applicant acknowledges using marijuana to relieve pain due to chronic osteoarthritis and back pain; and

(e) The applicant has asked the child, C.A.C., to collect money from the respondent on account of transportation costs she is required to pay.

[35] The most concerning aspect of the s. 112 report is found at p. 11 where the clinical investigator writes:

"Given the fact that, Mr. W.D.C. appears to be attempting to alienate Ms. J.L.M. from C.A.C. and failing to prioritize C.A.C.'s needs over his own, it is recommended that Mr. W.D.C. access to C.A.C. be on alternating weeks for a two to four hour period at a Supervised Access Program. There is concern that if Mr. W.D.C. continues to undermine Ms. J.L.M. and attempts to alienate Ms. J.L.M. from C.A.C. she will be unable to manage C.A.C.."

[36] The issue of alienation will be a central issue at the trial of this matter. The father denies some of the facts that lead the clinical investigator to this conclusion. Certain other facts are admitted but the interpretation offered by the applicant is different than that of the clinical investigator.

[37] Having regard to the concerns raised in the report and the other evidence contained in the record, I am of the view that a change in the existing access order must be made pending the trial of this matter. The child, C.A.C., should not be exposed to potentially alienating behaviours. I am of the view that the evidence presented does give rise to the urgent need to disturb the existing status quo in the best interests of the child. Unchecked alienating behaviour, even if the applicant does not see it as such, poses a significant risk to the child, C.A.C.

[38] I find that it is in the best interests of the child that the access by the applicant be varied pending trial in a manner that reduces the risk that C.A.C. will be exposed to alienating behaviour.

[39] The order of Justice Kowalyshyn allows for access on alternating weekends from Friday to Sunday. The weekend access is extended on holiday weekends. The order also allows for telephone and other electronic access and extended access at other periods such as during school vacations.

[40] Pending the trial of this matter – which I expect will be in the spring of 2013 – there should not be periods of extended access by the applicant with the child. During the access that does occur, the applicant must refrain from actions that undermine C.A.C.'s relationship with his mother.

6: ORDER

[41] A temporary order will go pending the trial of this matter that the access provisions at para. 2 of the order of Justice Kowalyshyn, dated September 1, 2010, shall be suspended with respect to both children, C.A.C. and S.Z.C., and the applicant shall have access to only the child C.A.C. as follows:

(a) On alternate weekends from Saturday at 12:00 p.m. until Sunday at 7:00 p.m.

(b) By telephone or other electronic means, no more than one-half hour per day.

(c) December 24, 2012 at 12:00 p.m. until December 25, 2012 at 2:00 p.m.

(d) During periods of access, the applicant shall not speak to or in front of the child nor allow any third party to do so in his presence about this court case, where the child will reside or in negative manner about the respondent.

[42] The Children's Lawyer is requested to update its investigation and report regarding C.A.C.'s access with the applicant and file such report by March 1, 2013.

[43] Having regard to the financial difficulties of the respondent as disclosed in her affidavit, an order will go that the requirement she pay to the applicant $75.00 per month toward the cost of access transportation be suspended pending the trial of this matter.

[44] If costs are sought, written submissions of no more than three pages and a draft Bill of Costs are to be filed within ten days and any response within five days thereafter.

Released: November 6, 2012

Barry M. Tobin Justice