Court File and Parties

Ontario Court of Justice

Date: September 22, 2017

Court File No.: Toronto DFO-13-10397-A1

Between:

Ashley Nicole Hunt Applicant

— And —

Sean Christopher O'Leary Respondent

Before: Justice Alex Finlayson

Heard on: September 21, 2017

Reasons for Judgment released on: September 22, 2017

Counsel:

• Rosemary Masemann, counsel for the applicant(s)
• Fatma Khalid, counsel for the respondent(s)

Judgment

Alex Finlayson J.:

Nature of this Motion

[1] On September 21, 2017, within a Motion to Change, I heard the Respondent father's interim motion for an order implementing an expanded access schedule to which the parties consented, conditionally, in paragraph 3 of the final Order of the Honourable Justice Cohen dated March 20, 2015. Although the father included a detailed "Custody and Access Plan" as part of his motion materials, he did not pursue most of the relief in that plan in argument. Rather, he focused his submissions on whether I should order the expanded access schedule.

[2] The father conceded that if I made such an order, it would be tantamount to a final Order, and it would essentially dispose of both parties' Motions to Change. The father's current motion was framed as an interim motion; he did not ask for summary judgment, nor could he have based on the material filed.

[3] The mother argued that I ought not change the status quo respecting access and that I ought to direct a focused trial respecting the issue of access. I was told by both counsel that although the father claimed sole custody in his Response to Motion to Change, custody is not really in issue in this case, and that any child support issues would likely resolve on consent. In the alternative to his main submissions, the father agreed that I could direct a focused hearing, but he preferred that I deal with his access motion.

[4] Given the focused nature of the outstanding issues, the conflicting affidavits in the material before me and the absence of evidence concerning certain key issues, I agree with the mother's submission that a focused trial is the preferable way to proceed. Consequently I am dismissing the father's interim motion dated July 11, 2017 and I am directing that a conference proceed before me to organize the focused hearing.

Background

[5] The father's motion dated July 11, 2017 concerns his access to the child, Brayden Calvin Hunt, born February 7, 2013 arising under a previous order of this Court.

[6] On March 20, 2015, Justice Cohen made a final Order providing, among other things:

(a) The mother has sole custody of Brayden;

(b) The father has access to Brayden from Friday at 3:30 pm to Sunday at 7:30 pm on alternating weekends, plus alternating Thursdays from 3:30 to 7:30 pm;

(c) There is a detailed holiday schedule set out in the Order;

(d) The Order sets out various "co-parenting principles" that regulate how the parents will participate in Brayden's life; and

(e) The father pays child support of $161 per month based on an annual income of $16,000.

[7] Paragraph 3 of the final Order provides that the father's mid-week access with Brayden will change to "double overnight access" from Wednesday at 3:30 pm to Fridays at 8:00 am when Brayden starts Kindergarten, "provided access is going well and no serious problems have arisen". The parties did not further define what this means.

[8] Brayden commenced kindergarten in September 2017. This, in tandem with a Report from the Office of the Children's Lawyer, precipitated the father's motion.

Prior Proceedings

[9] On March 16, 2016, 16 ½ months prior to Brayden commencing kindergarten, the mother launched a Motion to Change asking that the father have supervised access at APCO and for an order varying child support. The mother was concerned that the father had "relapsed in his drinking" in the summer of 2015, and that she had safety concerns about Brayden being in the father's care unsupervised.

[10] In his Response to the Motion to Change, the father alleges that the mother is manufacturing these allegations because he is in a new relationship with another woman. The father also raised a number of concerns about the mother's mental health and parental conflict between the two of them. In support of the latter, the father filed a number of vitriolic text messages that he received from the mother, which I reviewed. In reply, the mother says that the text messages are incomplete, and have been edited down by the father. She failed to tender the complete text messages however.

[11] Since the mother commenced the Motion to Change, this Court has made several orders. In particular:

(a) On May 13, 2016, Cohen J. made a temporary without prejudice order that the father not consume alcohol 12 hours prior to or during access visits, she made an order for financial disclosure, she endorsed that the parties will attend mediation and she directed the mother not to send text messages unless necessary in the child's best interests. Cohen J. also varied the father's access from Thursdays to Wednesdays;

(b) On November 8, 2016, Cohen J. appointed the Office of the Children's Lawyer; and

(c) On July 25, 2017, Nevins J. made an Order on Consent respecting summer access.

Report of the Office of the Children's Lawyer

[12] The Children's Lawyer accepted Cohen J.'s referral and assigned a clinical investigator, Michelle Nagy, to investigate and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. Ms. Nagy filed an "Interim Report" dated March 27, 2017 with the Court. Ms. Nagy states that she felt unable to make final recommendations as a result of a number of concerns that she had. So instead, she made a number of very detailed recommendations and indicated that she would re-initiate contact with the family on March 23, 2018. The recommendations are very much in the nature of final recommendations in this case despite Ms. Nagy's reservations.

[13] In the report, Ms. Nagy expressed a strong concern about the mother's mental health. This was based not only on the mother's self-reports, but also based on information from 3rd parties. The mother disclosed that she had an upcoming but not yet completed psychiatric assessment that Ms. Nagy felt would be helpful to consider. She also expressed concerns about mother's anxiety and that the mother had difficulty getting Brayden to day care in the past.

[14] Ms. Nagy was also concerned about the father's ongoing drinking. The report appears to corroborate the mother's concern about the father's alcohol consumption. What remains unclear is whether this occurs in the presence of the child. Even if the father's statements that he does not drink in the presence of the child are true, problematic alcohol consumption has been raised as a live issue in this case and it needs to be explored. Ms. Nagy also expressed a concern about the father's new partner, alcohol use and conflict between them in that new relationship.

[15] Regarding both parents, Ms. Nagy raised parental conflict as an issue in this case. She expressed a concern that mother may be sharing inappropriate information with Brayden, and that the parents are unable to communicate with one another in a functional way.

[16] In summary, Ms. Nagy was not prepared to make final recommendations given the missing information about mother's mental health and regarding the concerns surrounding the father's drinking. Neither party provided any updated information to fill in the evidentiary gap that would satisfy me that the new schedule proposed would be in Brayden's best interests.

Submissions

[17] Despite the concerns, Ms. Nagy made "interim recommendations" which included expanding the father's access as set out in Cohen J.'s Order. However, she indicated that she wanted to re-initiate contact with the family on March 23, 2018.

[18] I asked counsel whether this was merely a motion to implement Cohen J.'s prior Order and that I needed only consider whether the condition set out therein had been met, or whether this motion called upon me to consider the Children's Lawyer's Report on an interim basis. The father argued the former and the mother argued the latter.

[19] Obviously, this Court is guided by Brayden's best interests. However, there are two other important principles that apply. Reports from the Office of the Children's Lawyer are generally to be used at trial. Furthermore, as Justice Ellen Murray held in Copeland v. Perreault, 2007 ONCJ 217 at ¶ 45, a court ought not change a status quo pending trial unless there are compelling circumstances to do so.

[20] While in Copeland v. Perreault, E. Murray J. found compelling circumstances and changed a status quo pending trial, the facts of Copeland are very different from the facts of this case at this stage. Not only was the child experiencing distress under the existing access schedule in Copeland, but Murray J. also considered that there were extensive affidavit materials on which the parties had been cross-examined pursuant to rule 20(5) of the Family Law Rules. This included the cross-examination of the clinical investigator who had prepared the s. 112 report in that case. The trial in Copeland was going to involve multiple issues and witnesses and so the case would not be trial ready for a number of months. These factors militated in favour of Murray J. intervening on an interim basis.

[21] I appreciate that the report in this case purports to be an "interim" report, but I fail to see how that removes this case from the ambit of the aforementioned framework. I am unable to conclude that I ought to treat this particular "interim" report differently than a "final" report from the Children's Lawyer prepared in the ordinary course for four reasons.

[22] First, s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, does not make provision for an interim report.

[23] Second, while Ms. Nagy felt it was appropriate to split the investigation and delay the delivery of a final report, I am not required to wait for a further 6 months for Ms. Nagy to re-initiate contact with the family and prepare an update before dealing with this case. I further note that the Court requested the involvement of the Children's Lawyer initially; it did not request an update; the "interim" report is quite detailed, and neither parent asked me to delay this matter until mid-2018 during submissions.

[24] Third, the missing information that Ms. Nagy felt precluded her from rendering a final report does not preclude the Court from addressing this matter on a final basis. The parents can easily obtain the missing information and tender it in the ordinary course to fill the evidentiary gap that currently exists so that the Court has a complete evidentiary record before it.

[25] Fourth, unlike in Copeland, in this case, both counsel agreed in submissions that this matter can proceed by way of a focused hearing if I am not prepared to make an interim order.

[26] In this case, Justice Cohen's Order of March 20, 2015 provided that the father's access would expand "provided access is going well and no serious problems have arisen". I cannot conclude, based on the evidence before me, that this condition has been met. The Court requires a complete evidentiary record concerning Brayden's best interests. At this stage, the evidence is conflicting and both parents, and Ms. Nagy, have raised concerns that may impact Brayden's best interests, which remained unanswered at the hearing of this motion.

Order

[27] The father's interim motion dated July 11, 2017 is dismissed.

[28] The trial coordinator shall contact counsel for both parties and shall schedule the next step in this case, which shall be a Trial Management Conference for the purpose of organizing the focused hearing. 30 minutes is required for the Trial Management Conference.

[29] Trial Management Conference Briefs are not required. Instead the parties shall complete the attached "Checklist for Focused Hearings" Form. I ask that counsel for the parties consult with one another in advance of the next date and attempt to prepare a joint form so that the parties and the Court can have a focused discussion only about areas of disagreement relating to the procedure for the focused hearing.

[30] In completing the form, I ask the parties to consider:

(a) Whether the parties' evidence can be adduced by way of affidavit, with limited evidence in chief followed by cross-examination. If not, I will require submissions about a different format;

(b) Whether any other witnesses will be called, and whether that evidence can be adduced by way of affidavit, with limited evidence in chief followed by cross-examination. If not, I will require submissions about a different format;

(c) How much time is required for each witness's testimony;

(d) Who will be calling the witnesses and a plan for the order of presentation of the evidence, including cross-examination of Ms. Nagy;

(e) What outstanding disclosure is required in light of the concerns raised in the OCL Report;

(f) A timetable/plan to obtain the disclosure referred to in (e) above, including the notes and records from the OCL relating to the s. 112 report. If there are any objections to disclosure requests by one party to the other, then I will deal with those at the next date; and

(g) Whether any of the aforementioned disclosure is admissible pursuant to the Evidence Act to save on Court time.

[31] If either party requests costs of the father's motion, then I will hear brief oral submissions on the return date. Counsel should come prepared with Bills of Costs if costs are claimed.

Released: September 22, 2017

Signed: Justice Alex Finlayson