ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-09-352141
DATE: 20120330

BETWEEN:

K.W. Applicant/Respondent in the Motion – and – S.W. Respondent/Applicant in the Motion

Lorna M. Yates, for the Applicant/Respondent in the motions
Gerald P. Sadvari, for the Respondent/Applicant in the motions

HEARD: March 22, 2012

Kiteley j.

REASONS FOR DECISION

1This is a motion by the husband in which he originally asked for five orders. He withdrew the motion with the exception only of his request for an order requiring Dr. Butkowsky to file his Final Report with the court and provide copies to each party. In support of his motion, the husband filed affidavits sworn January 20 and March 15 as well as the s.35.1 affidavit sworn March 8. An affidavit of Mr. Sadvari’s law clerk sworn January 27 th was filed on the issue of the timing of the return date of the motion. In response, the wife filed an affidavit sworn March 20. I have read all of the affidavits including all of the attachments.

2In this decision, I will refer only to the evidence related to the report of Dr. Butkowsky. While some of the evidence touches on the issue of costs, the majority of the evidence relates to the ongoing conflict involving the children. I deliberately will not refer to that evidence because (a) the circumstances involving this family and particularly these children are tragic and the less said in a public document the better it is; (b) the parties are awaiting a decision following a trial on financial issues heard by Justice Jennings in October 2011 and I would not want to inadvertently touch on any matter that might have been the subject of evidence before him; and (c) it is not necessary for me to review the evidence in detail to dispose of the matters before me.

Part A: Report of Dr. Butkowsky

3The parents separated in September 2008. They have three children: P. who is now 18, D. who is now almost 15 and H. who is almost 12. In 2010, the parties agreed that an order would be made for an assessment of the needs of the children pursuant to s. 30 of the Children’s Law Reform Act . An endorsement was never made by any judge. An order was never signed or entered. The report is not before me but counsel have it in their possession. Counsel confirmed that Dr. Butkowsky indicated in his report that it was pursuant to s. 30.

4In April 2011, Dr. Butkowsky provided to the parties and their counsel a Recommended Parenting Plan that included his recommendations but did not include his report which was subsequently provided to counsel. The parties negotiated a parenting agreement which they signed on September 14 th .

5On September 12 th , counsel for the husband sent an email to counsel for the wife confirming “that pending resolution of the parenting issues, all counsel agree to hold a copy of Dr. Butkowsky’s report in their respective files and they will not be circulated at this time”. The day after the parenting agreement was signed, counsel for the husband sent a letter to Dr. Butkowsky that included the following:

I am writing on behalf of the parties. I have copied Ms. K.W.’ counsel, Lorna Yates, on my letter.

I am pleased to advise that the parties have reached a settlement on the parenting issues in this matter. Accordingly, we do not require your testimony at the upcoming trial. Kindly return to me the summons and cheque that we provided to you for the witness fee at your earliest opportunity.

The parties are also in agreement that you not send to the parents, Mr. and Ms. W., a copy of your report until further joint instruction from counsel to do so or court order.

Thank you for your assistance in this matter and helping the parties to reach an agreement on the parenting issues. (emphasis added)

6In paragraph 11 of the parenting agreement, the parents agreed that they and the children would be referred for “family therapy with a duly qualified mental health professional with expertise in the needs of children, family dynamics and systems, and the estrangement/alienation of children from parents, and with experience working in collaboration with Youthdale Treatment Centre at a frequency to be determined after discussions with the mental health professional. This family therapy shall be mandatory, and shall be incorporated into a Court Order.” P. had previously been involved with Youthdale and it was for that reason that the family therapist would be expected to have experience working with that Centre.

7At the time of the trial on the financial issues, the terms of that parenting agreement were incorporated into a final order dated October 18, 2011. The initiative to institute family therapy began after the trial in October. The parties agreed that Dr. Barbara Dydyck would assist them and she agreed to do so.

8Attached to the affidavit sworn January 20 th there are some of the many emails exchanged between the husband and the wife and others on the subject of family therapy and access. At paragraph 27, the husband said that he asked Dr. Dydyck to speak to Dr. Butkowsky but she would not do so without his wife’s consent and, in an email dated December 19 th , his wife refused to consent. In paragraphs 32 and 33 of that affidavit, the husband gave his explanation for wanting to read Dr. Butkowsky’s report.

9On March 14 th , the notice of motion other than the request with respect to Dr. Butkowsky’s report was withdrawn. In his affidavit sworn March 15 th , the husband focused on his request for a copy of the report and I note in particular paragraphs 8 to 16 as the evidence explaining why he wanted to review it. Amongst other things, he said that he thought that the report should be made available to the many professionals who were involved with the family, including Dr. Dydyck.

10In her affidavit sworn March 20 th , the wife deliberately did not respond to all of the evidence in his prior affidavits. On the subject of Dr. Butkowsky’s report, her evidence was found primarily in paragraphs 55 to 77. She said that she had no issue with the report being released to any mental health professional involved with the children or in a family therapy process upon request from that mental health professional, including Dr. Dydyck and that if any professional asked, then a copy would be made available to the parents.

11At the conclusion of submissions, I dismissed the motion subject to the report being available to professionals at their request. My reasons for doing so are these.

12On the basis that this was not a s. 30 assessment, there is no jurisdiction to make the order requested. Simply because counsel agreed on behalf of their clients in the September 15 th letter to Dr. Butkowsky that the report would only be released on agreement or court order does not give the court jurisdiction to make such an order.

13Since it was likely an oversight that the agreement in writing to have a s.30 assessment had never been incorporated into an endorsement or an order, I consider the motion as if such an order had been made. Section 30 provides that the court before which an application is brought 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. The person appointed is required to file his report with the clerk of the court. The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. The report is admissible in evidence in the application. The assessor may be a witness.

14While the assessment was made in the existing application, that application has been disposed of. A final order as to parenting has been made. S. 30 no longer applies.

15Counsel referred to Worthington v. Worthingon 2000 CarswellOnt 4889 in December 2000 in which the court heard applications by both parents for custody and or access. In that application, a s. 30 assessment had been prepared by Barbara A. Chisholm. In preparation for her report, she was given a copy of a s. 30 assessment that had been prepared by S.L. Luker on the issues of custody and access that had been prepared in 1991 during the first separation and in the context of subsequently discontinued divorce proceedings. In the hearing of the application in December 2000, counsel for the respondent tendered the Luker report. J.W. Quinn J. sustained the objection of counsel for the applicant. He concluded that based on s. 30, the report was admissible only in the application in which the report was ordered. He held that its admissibility was therefore governed by s. 52 of the Evidence Act and that, if Ms. Chisholm had relied on it, then the parts upon which reliance was placed were admissible.

16I appreciate that the issue before me appears to be a matter of first instance and that an effort was made to provide whatever authorities might exist. I agree with the conclusion of J.W. Quinn J. that the s. 30 assessment report produced in an earlier application was not admissible in a subsequent application. In this case, there is no subsequent proceeding. This is a motion brought in an application in which a determination was made on consent and a final order was made. If it is not admissible in a subsequent application, then it cannot be admissible in an application that has been exhausted vis-à-vis parenting issues. This issue is not one of enforcement (which could be pursued within the existing application) nor of variation (which requires a fresh application to change). While the issue before me is making the report available, as opposed to its admissibility, if it is not prima facie admissible, it is not producible.

17Assuming for the moment that the court has jurisdiction either pursuant to s. 30 or pursuant to the September 15 th letter, the issue is the criteria upon which the court would make the order requested. In the absence of any specific criteria referred to in the letter dated September 15 th , the relevant factor is the best interests of the children. I am not persuaded that the best interests of the children warrant the release of the report to the parents. First, the essence of the position taken by the husband is that he wants to know so that he can better understand the reasoning behind Dr. Butkowsky’s recommendations. However, the parents accepted and relied on those recommendations in creating the parenting plan and the subsequent court order without knowing that reasoning. Nothing has changed in the meantime to suggest that that reasoning must be disclosed. Second, the report deals with all three children, yet the eldest child has now reached 18 years of age and he may have some input into disclosure of the report. Given the circumstances of this family, it would be contrary to his best interests to even seek his input.

18Both parents agree that the report might be made available to the many professionals with whom some or all of the members of the family are engaged. The difference in their positions is that the husband takes the position the report should be made available to them while the wife takes the position that the report should be made available on request. I agree with the latter position. It would be inappropriate to make an order requiring the report to be made available to various professionals. If sent to each of them pursuant to a court order, the report might appear to have far more significance than it does particularly since the investigations by Dr. Butkowsky ended with his recommendations over seven months ago and in the intervening period, D. has been in his own crisis. And it might be made to appear that a judge has made the report required reading for professionals. It is appropriate that professionals dealing with the family members have the opportunity to request a copy of the report. It would then be reasonable for the husband and the wife to have access to it.

19Since both parties agree that professionals may have access to it, I will set out the conditions on which that will occur.

20These reasons will deal also with the issue of costs of the motion by the husband including the part that was withdrawn. I intend counsel to prepare two distinct orders, one containing the order with respect to Dr. Butkowsky’s report and one dealing with the costs. I do not intend counsel or their clients to provide to any of the professionals involved a copy of these reasons for decision.

ORDER TO GO AS FOLLOWS:

21The report of Dr. Butkowsky will be made available as follows:

(a) At the request of S.W., his counsel may send a letter to any or all of the professionals involved in the care of any of the children and Dr. Dydyck advising each that a copy of the report is available on request.

(b) If any professional requests a copy of the report of Dr. Butkowsky:

(i) it shall be provided to him or her by counsel for S.W., with a carbon copy of the covering letter to be sent to counsel for K.W.;

(ii) then counsel for S.W. shall provide a copy to his client and counsel for K.W. shall provide a copy to her client.

(c) Neither parent shall share any part of the report with any of the children.

Part B: Costs of the motion brought by the husband

22When the husband abandoned his motion except for the issue of Dr. Butkowsky’s report, counsel agreed that the issue of costs of the part of the motion that was abandoned would be dealt with when the issue of the report was decided.

23Ms. Yates has provided a bill of costs covering the period beginning January 23, 2012 (when the motion was launched) and ending on March 21 st in the total amount of $11,390.40 calculated on a full indemnity basis. Ms. Yates indicated that it included almost $5495 for services rendered prior to drafting her clients responding affidavit and factum which she described as “nonsense costs”. It did not include attendance at the motion.

24On behalf of Mr. K.W., Mr. Sadvari took the position that the motion with respect to March access was necessary, that March access resolved at court, and therefore the motion was justified, that the issue of the report was novel and should not attract costs and that the most I should order was costs of $4500 payable within 30 days.

25The wife is entitled to recover costs. The only issue is the amount. I start with rule 24 that provides a presumption that a successful party is entitled to the costs of a motion. Reasonableness is a factor in determining entitlement to costs and rule 24(5) provides that in arriving at conclusions as to reasonableness, the court must consider the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle, the reasonableness of any offer the party made and any offer the party withdrew or failed to accept. According to rule 24(11) the factors in fixing the amount of costs includes the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behavior in the case; the lawyer’s rates; the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order; expenses properly paid or payable, and any other relevant matter.

26On March 14 th , Mr. Sadvari served an offer to settle that provided that the parties would consent to release of Dr. Butkowsky’s report, on the basis that it had been prepared pursuant to section 30. The husband agreed that he would pay costs fixed at $3500. The offer had to be accepted no later than March 15 th at 5:00 p.m.

27On March 20 th , before her client’s affidavit was served, Ms. Yates served an offer to settle that required the husband to pay costs thrown away in the amount of $4500, that the report would be released to the family therapist and any other mental health professions involved with the children upon their written request and then would be released to the parties provided that neither party would share the contents with the children. The offer also specified that any affidavits filed by the husband and his counsel should be removed from the continuing record. If the offer was accepted after March 21 st at 5:00 p.m. then the offer provided for costs to the wife on a complete recovery basis. If it was not accepted and the wife did as well as or better on any aspect of the offer, then she would be entitled to a complete recovery basis.

28The offer is consistent with paragraphs 75 to 77 of her affidavit and consistent with the order I made above. The issue of suppressing the affidavits filed on behalf of the husband was not argued before me. On the issue of principle that was before me, the wife was successful. As indicated above, the parents agreed that professionals should have access to the report. The difference between them was whether it was automatic or on request and whether the parents should have access to the report independent of the request by any of the professionals. I accepted the position taken on behalf of the wife.

29The issue of whether the court could or should make an order compelling the production of a report in these circumstances was important to both of the parties and appears to be a matter of first instance.

30As for the reasonableness of the husband, I understand why he launched the motion in the first place and in that sense he was not unreasonable. However, in view of the crisis that D. experienced in February, it was unreasonable to pursue any part of the motion at that time. The focus should have been on responding to D.’s crisis, not on pursuing motions in court.

31As for the time spent by Ms. Yates, a considerable portion of the correspondence and communications in late January and early February related to the complexities of her schedule. While counsel must make efforts to accommodate the schedules of opposing counsel, that does not mean that costs associated with such accommodation should be visited on the moving party.

32I am satisfied that the wife is entitled to costs on a full recovery basis of the motion based on her success and her offer to settle. Without analyzing the bill of costs in detail, (a) I discount the bill of costs to reflect services rendered in scheduling issues; and (b) I make a modest discount to reflect that this was a matter of first instance. Having said that, I recognize that the bill of costs does not include services rendered on March 22 nd .

ORDER TO GO AS FOLLOWS:

33The husband shall pay costs of the motion fixed at $9,000 payable by April 30 th , 2012.

Kiteley J.