Court File and Parties
Ontario Court of Justice
Date: 2019-05-28
Court File No.: Brantford F-150/14B
Between:
Joseph Downey Applicant
— And —
Michelle Starratt Respondent
Before: Justice A.D. Hilliard
Heard on: May 28, 2019
Reasons for Judgment released on: June 4, 2019
Counsel:
- E. Carroll, counsel for the applicant(s)
- M. Massey, counsel for the respondent(s)
Judgment
Hilliard J.:
Motion and Relief Sought
[1] This is a motion brought by the Applicant requesting that he be permitted to issue an Application requesting that a Child Advocacy and Assessment Program (CAAP) assessment for the subject child be ordered by the Court, orders ancillary to the ordering of an assessment, Christmas parenting time, a prohibition against the Respondent attending at the child's schools on specific days, and an order for the production of the child's personal documentation.
Background
[2] The parties entered into a Final Order on consent in April 2015.
[3] The Applicant brought a motion to change that final order in September 2016.
[4] A trial on the motion to change was heard by Edward J. of this court in May and June 2018, and judgment was rendered on August 21, 2018.
[5] The Applicant served a Notice of Appeal of Edward J.'s order in September 2018.
[6] While the appeal was still outstanding, the Applicant filed an ex parte motion, by way of a Motion Form, on December 7, 2018, requesting "[a]n Order permitting the issuance of the Application of the Applicant, Joseph David Downey, dated November 19, 2018."
[7] On December 8, 2018, Edward J.'s chambers endorsement directed that the matter could not be argued on an ex parte basis and therefore the Respondent was to be served with the motion.
[8] On December 14, 2018, the matter was adjourned to January 4, 2019 for argument on whether the Court has jurisdiction to issue an application while the previous final order was under appeal.
[9] On January 4, 2019, the matter was adjourned to determine next steps in the matter but no order as to the jurisdiction of the court was made.
[10] On January 18, 2019, further directions were provided to counsel by way of endorsement but again no order was made as to the jurisdiction of the court to grant the relief being requested by the Applicant.
[11] On May 28, 2019, the matter came before me with the issue of the jurisdiction of the Court still not having been decided and I heard argument on that issue alone. Argument before me centred on the issue of the Court's ability to Order a CAAP assessment and the urgent need for such an assessment to be completed on the child. None of the other relief requested in the Application the Applicant is proposing to have issued were raised during the course of argument.
Respondent's Position
[12] The Respondent takes the position that pursuant to s. 138 of the Court of Justice Act, there must not be a duplicity of proceedings and therefore this Court has no jurisdiction to allow the Applicant's motion while the appeal process is ongoing.
[13] The Respondent's counsel took the position during argument that the proper process to be followed would be for the Applicant to either bring a motion for fresh evidence in the event that he is successful in his appeal and granted a new trial, or alternatively to bring a motion to change and request that a CAAP assessment be ordered.
Applicant's Position
[14] The Applicant's position is that there would not be a duplication of proceedings if he is allowed to bring his application as a CAAP assessment was not requested by either of the parties at the time of trial and that it is not a form of relief that can be requested in the appeal proceeding before the Superior Court of Justice.
[15] The Applicant's counsel further submitted that because neither of the parties requested that the Court at trial order a CAAP assessment the Applicant would then be barred from making such a request on a Motion to Change.
[16] The Applicant's counsel argued that as a request was never made in the original Application for a CAAP assessment by either party that it is therefore a new head of relief being requested which necessitates a fresh Application.
Court Ordered Assessments
[17] Sections 30(1) and 30(2) of the Children's Law Reform Act (CLRA) provides as follows:
30 ASSESSMENT OF NEEDS OF CHILD – (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
(2) WHEN ORDER MAY BE MADE – An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child with or without a request by a party to the application.
[18] Court ordered assessments are to assist the Court in making determinations about custody and access and are therefore ancillary matters to ongoing family proceedings.
[19] A s. 30 assessment under the CLRA would only be ordered in the context of an application or motion to change brought regarding custody of or access to a child or children.
[20] There is no jurisdiction for the Court to make a stand alone order for an assessment pursuant to s. 30 of the CLRA simply on the basis of an Application requesting that such an order be made.
[21] The Application that the Applicant is proposing to issue, a draft of which is attached as Exhibit "A" to the Affidavit of Kathryn Cook, sworn November 29, 2018, sets out the claim for the ordering of a CAAP assessment as follows:
- An Order requiring the child, D.I.D. (male), born December 7, 2013 to attend for an assessment by the Child Advocacy and Assessment Program administered by the Department of Pediatrics of McMaster University pursuant to section 105 of the Courts of Justice Act.
[22] Section 105 of the Courts of Justice Act reads as follows:
105(1) "Health Practitioner" defined – In this section, "health practitioner" means a person licenced to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.
(2) Order for physical or mental examination – Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(3) Idem – Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to the material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
(4) Further examinations – The court may, on motion, order further physical or mental examinations.
(5) Examiner may ask questions – Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and answers given are admissible in evidence.
[23] This Court has no jurisdiction to make an order for a CAAP assessment of the subject child pursuant to s. 105 of the Courts of Justice Act (CJA) as the child is the subject of and not a party to the proceedings.
[24] An order for an assessment either under s. 30 of the CLRA or s. 105 of the CJA cannot be made as a stand alone order. Such assessments are for the sole purpose of assisting the court in making determinations as to the appropriate custody and/or access order in the case of s. 30 assessments under the CLRA or determinations regarding a party's physical or mental condition relevant to a material issue in the proceeding in the case of s. 105 assessments under the CJA.
[25] As there is no ongoing proceedings in this matter regarding custody of or access to the subject child as there is an appeal ongoing, I find that this Court has no jurisdiction to allow the Applicant's motion to bring an application seeking an order for an assessment.
[26] I further find that the remainder of the relief requested in the Applicant's application for which he is seeking leave to issue are all matters that should be put before the Court by way of a motion to change, or, in the event that the Applicant is successful on the appeal, by way of a motion for fresh evidence on the re-trial.
Disposition
[27] For all of the above reasons, I dismiss the Applicant's motion.
[28] Submissions on costs may be made by counsel to my attention through court services.
[29] The previously set date for this matter on July 2, 2019 is now vacated as it is unnecessary given my ruling.
Released: June 5, 2019
Signed: Justice A.D. Hilliard