ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F/435/11
DATE: 2012-06-2 6

BETWEEN:

Michelle Catherine Baillie Applicant – and – Jeffery Allan Middleton Respondent

Michael Nash, Counsel for the Applicant
Novalea Jarvis, Counsel for the Respondent,

HEARD: June 22, 2012

The Honourable mr. justice pazaratz

[ 1 ] The only issue on this motion is the Applicant’s request for a custody/access assessment pursuant to section 30 of the Children’s Law Reform Act (“ CLRA ”) in relation to the only child of this relationship, six year-old Glenn.

BACKGROUND

[ 2 ] The Applicant mother is 34 years old. The Respondent father is 41. They separated almost 4 years ago on August 31, 2008. Since then they have effectively had equal time-sharing of the child without a separation agreement or court order.

[ 3 ] Currently Glenn is with the Respondent alternate weekends from Friday after school until Monday morning; and each week from Tuesday after school until Thursday morning. Glenn sleeps over at each parent’s residence a total of seven nights in a 14 night cycle.

[ 4 ] Geography has come to be perhaps a dominant issue. When the parties separated they were living in Mississauga in a jointly owned matrimonial home. The Applicant relocated to Hamilton where she enrolled Glenn in school.

[ 5 ] The Respondent insists that after the Applicant moved to Hamilton they had discussions and agreed:

a. He would move from Mississauga to Oakville.

b. She would move from Hamilton to Burlington.

c. They would end up living closer to one another within Halton region.

d. Glenn would attend junior kindergarten in Hamilton, until the Applicant moved from Hamilton.

e. Starting with senior kindergarten, Glenn would attend school in the Burlington/Oakville area (by which time the Applicant was to have relocated to Halton).

[ 6 ] The Respondent says he fulfilled his part of the bargain, but after he moved to Oakville (where he now lives with his new partner and her two children) the Applicant refused to move from Hamilton. He says she also reneged on their agreement to transfer Glenn’s school from Hamilton, with the result that Glenn had been in the Hamilton system for junior and senior kindergarten (both years half days) and most recently full time attendance in grade one in a French Immersion program.

[ 7 ] The Respondent wants Glenn transferred to a school in Oakville for grade two starting in September 2012. That issue is scheduled for argument at a long motion in August.

[ 8 ] The Applicant denies much of the Respondent’s characterization of any agreements. She plans to remain in Hamilton, and proposes that Glenn continue to attend school here.

[ 9 ] On March 21, 2011 the Applicant commenced an application which included requests for the following relief

a. Custody.

b. In the alternative joint custody provided that a parenting coordinator is retained by the parties indefinitely for arbitration of disputes.

c. Child and spousal support.

d. Equalization of that family property.

e. Divorce.

[ 10 ] On December 9, 2011 the Respondent filed an answer which included requests for the following relief:

a. Custody.

b. In the alternative joint custody.

c. In the alternative access.

d. Primary residence of the child in Oakville with secondary residence of the child to be with the Applicant in Hamilton.

e. Child to attend school in Oakville commencing September 1, 2012 as opposed to current placement in Hamilton.

f. Child-support.

[ 11 ] Among the Applicant's concerns:

(a) Apart from arranging the equal time-sharing regime, the Applicant and Respondent have agreed on very little concerning Glenn since the separation.

(b) The Respondent has enrolled Glenn in swimming and Beavers in Oakville without consulting the Applicant.

(c) The Applicant says Glenn is more comfortable and less stressed in her home than in the Respondent's.

(d) Glenn has behavioural and academic issues exacerbated by stress and lack of structure.

(e) The Applicant believes that equal time-sharing arrangement will not be sustainable once Glenn is in full time school.

(f) The Applicant believes that Glenn should remain in his current school in Hamilton, with primary residence with the Applicant.

(g) The Applicant says the parties communicate so little and so poorly that joint custody cannot possibly work unless they have a permanent parenting co-ordinator in place.

[ 12 ] The Respondent describes the areas of conflict as follows:

a. The parties were getting along fine until the Applicant unilaterally moved away, and later reneged on their agreement that they should live closer to one another for the sake of their child.

b. The Applicant unreasonably refuses to assist with transporting Glenn between their homes even though she has the ability to do so.

c. The Applicant refuses to discuss, inform, consult or negotiate with him on major decisions.

d. She refuses to communicate with him through a communication log.

e. Apart from residence and schooling, the Applicant has made other unilateral changes to Glenn’s routine and commitments, including changing his doctor.

f. She has frustrated his access to the child. She drops him off late, past his bedtime.

g. She appears to be intent on reducing the Respondent’s time and involvement further.

h. The Respondent believes the Applicant has been deliberately trying to set up a status quo in Hamilton.

i. The Respondent says he has an excellent, warm and loving relationship with Glenn.

j. The Respondent says the child wants to see him on almost a daily basis and it is in his best interests to have maximum contact.

k. The Respondent says he is in a stable relationship with his new partner Ashley and her two children. In contrast, the Applicant has had relationship problems and will soon be moving again.

l. The Respondent says Glenn is closely attached to Ashley and her children.

m. Glenn has been having problems in school in Hamilton. There would be more opportunities for him attending school in Oakville.

n. The Respondent describes Glenn is a very flexible and resilient child who will adapt easily to a new elementary school.

o. The Respondent says the Applicant has fallen asleep many times which has affected family plans. He expressed concern that this behaviour has caused Glenn to access emergency services as he could not wake up the Applicant. He fears for Glenn's safety while in the care of the Applicant.

p. The Applicant has a very dysfunctional family. She routinely doesn't speak to her mother and father and refuses to permit her mother to have any access to Glenn. In contrast Glenn has a strong relationship with the parents of the Respondent and Ashley.

[ 13 ] The Applicant now wants a custody assessment, and has proposed two local social workers as candidates.

[ 14 ] The Respondent is opposed to an assessment. He acknowledges that at one point he would have been open minded to a section 112 investigation being conducted by the Office of the Children’s Lawyer (“OCL”), primarily because it would be free. However, the parties never agreed on making that request. In any event, neither party perceives it as a good option at this stage.

THE LAW

[ 15 ] Section 30(1) of the CLRA provides as follows:

The court before which an application is brought in respect of custody or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to a 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.

[ 16 ] There are two lines in the case law.

[ 17 ] Some courts have interpreted s. 30 liberally, ordering assessments wherever it is “in the best interests of the child”. ( Goldberg v. Goldberg 1996 8100 (ON SC) , 26 R.F.L. (4th) 99 (Ont. Gen. Div.); Parniak v. Carter 2002 45671 (ON CJ) , 30 R.F.L. (5th) 381 (Ont. C.J.)). With our increasingly holistic approach to children’s issues – children’s lawyers, alternative dispute resolution; mediation; parenting co-ordinators; therapeutic access programs; etc. – there is an understandable temptation to summon every possible resource to repairing parent-child problems. Indeed, there appears to be growing judicial awareness of the need for early identification and special treatment for high conflict custody cases. In that context, assessments are often requested – and sometimes ordered – largely in the hope that early intervention by “an expert” may resolve the dispute, or at least provide additional insight for the judge.

[ 18 ] However, the prevailing – and in my view preferred -- approach is reflected in the long line of cases which follow Linton v. Clarke (1994) 1994 8894 (ON SCDC) , 10 R.F.L. (4th) 92 (Ont. Divisional Court) in emphasizing the specific and narrow purpose of s. 30 assessments. Those cases summarize the law as follows:

[ 19 ] Assessments are not to be ordered routinely. ( Linton, supra).

[ 20 ] Assessments should not be ordered routinely as a vehicle to promote settlement of custody disputes. If the legislature had intended such broad utilization of assessments, the legislation would have mandated assessments in all cases. ( Linton, supra).

[ 21 ] A court should not order an assessment simply to obtain an apparently impartial third party's opinion on what is in a child's best interests. ( Stefureak v. Chambers 2004 CarswellOnt 4244 (SCJ) .

[ 22 ] The use of an assessor's report simply because it might be helpful to the court in dealing with custody and access issues is an overarching use of expert evidence. ( Fortier v. Oliver 2003 CarswellOnt 5397 (SCJ) ).

[ 23 ] Assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody. ( Linton , supra; Archer v. Harries-Jones 2008 ONCJ 544 () , 2008 CarswellOnt 6624 (OCJ) ; Menahem v. Menahem 2005 CarswellOnt 4988 (SCJ) ; Parkins v Burnke 2006 24450 (ON SC) , 2006 CarswellOnt 4499 (SCJ)).

[ 24 ] Clinical issues have been loosely defined as being "those behavioural or psychological issues about which the average reasonable person would need assistance in understanding. . . not limited to psychiatric illness or serious psychological impairment." ( Tamm v. Oddy 1998 CarswellOnt 4987 (Ont. Master) .

[ 25 ] Allegations of parental alienation or an inexplicable rift between parent and child may warrant a s. 30 assessment. ( Stewart v. Stewart 2006 CarswellOnt 8273 (SCJ) ).

[ 26 ] Age may be important. Where the case involves a young child – whose views and preferences may be given limited weight – and where the young child is not experiencing behavioural difficulties, an assessment may not be appropriate in the absence of significant clinical issues. ( Glance v. Glance 2000 CarswellOnt 3169 (SCJ) ; Jarvis v. Landry 2011 CarswellNS 169 ; Parkins v. Burnke , supra).

[ 27 ] General allegations of parental misbehaviour – without credible evidence to substantiate those concerns – will not warrant an assessment, in the absence of distinct clinical issues. ( Root v. Root , 2008 CarswellOnt 3995 (SCJ) ).

[ 28 ] Speculation that clinical issues might exist – or might arise (for example, in the context of a mobility dispute) -- are not sufficient to justify an assessment. ( Sheikh v. Sheikh 2004 CarswellOnt 4395 (SCJ) ).

[ 29 ] In Korkola v. Korkola 2007 CarswellOnt 1545 (SCJ) O'Neil J. refused to order an assessment and quoted the annotation of J. MacLeod in Chapman v. Chapman 1985 4969 (ON SC) , 49 R.F.L. (2d) 47 (Ont. Dist. Ct.) where he said:

As a note of caution, the court ought not to assume that every assessment will raise new and pertinent evidence. The onus should be on the moving party to show at least some reason for the assessment. There should be some reason to expect that the assessment will add to the evidence if, as our law provides, the parties and child have a right to have the decision of custody and access made by a judge, not an assessor. To order an assessment merely because the parties dispute the issue would render this section in effect mandatory. There must be some evidence that the dispute is so intense as to prevent all the relevant factors coming out, or that there appears to be a parent/child problem that requires expert analysis and/or explanation, or finally, that the assessment is necessary to allow the parties to understand the needs of the child and the need for co-operation.

[ 30 ] In Adams v. Nobili 2011 CarswellOnt 8389 (SCJ) Herman J. followed up on this often cited comment by J. MacLeod:

39 In his article "Assessing the Assessor: Legal Issues" (1990), 6 C.F.O.Q. 179 at pp. 190-191, also cited in Linton v. Clarke at para. 7 , Nicholas Bala suggests that, while the onus is on the moving party to justify the appointment of an assessor, there will be few contested custody or access disputes in which an assessment would not meet at least one of McLeod's criteria.

40 This may be one of those few cases. Although the background to this case may be unusual, there is no evidence of any significant problems, either with the child, the parties' parenting or their ability to communicate with each other.

41 I conclude that the father has provided insufficient evidence to provide a basis for ordering an assessment report.

[ 31 ] The mere fact that the parties are engaged in a high-conflict custody dispute does not, in itself, justify ordering an assessment. ( Archer v Harries-Jones , supra ).

[ 32 ] Similarly, courts should resist any subtle influence created by the sheer volume of material – the number of allegations and affidavits. ( Jonkman v. Murphy 2011 ONSC 3917 (SCJ)). Motions for s.30 assessments can be hotly contested for all sorts of strategic reasons. Typically the party seeking an assessment will feel compelled to raise as many complaints as possible, perhaps hoping that cumulatively they will establish that family dynamics are so troubled that an expert is needed to sort it all out. This “shotgun” approach should be discouraged. It is unhelpful to the s.30 analysis, which invites identification of specific clinical issues. It is also needlessly destructive and promotes inflammatory behaviour.

[ 33 ] A dispute about joint custody versus sole custody is a question of fact. An assessment -- although perhaps helpful -- is not required in order to make this determination. ( Archer v Harries-Jones , supra ).

[ 34 ] The order must have a proper evidentiary basis and the paramount concern must be the best interests of the child. ( Tucker v. Tucker (1998), 1998 ABCA 281 () , 165 D.L.R. (4th) 103 (Alta. C.A.)).

[ 35 ] Expert evidence should not be routinely required to establish the best interests of the child. ( Young v. Young (1993) 1993 34 (SCC) , 49 R.F.L. (3d) 117 (SCC). Experts are not always better able than parents to assess the needs of a child. In some cases specific expertise may be required in relation to specific issues. But the person involved in day-to-day care may often be best able to observe changes in the behaviour, mood, attitude, and development of a child that could go unnoticed by anyone else.

[ 36 ] An assessor's expertise will be necessary only if clinical issues exist outside the normal give-and-take of custody and access disputes decided on a daily basis by the court. ( Haggerty v. Haggerty 2007 CarswellOnt 4151 (OCJ) ).

[ 37 ] A court should not delegate its duty to determine what parenting arrangement is in a child's best interests to an assessor. ( Johnson v. Cleroux 2002 CarswellOnt 787 (Ont. CA) ). An assessment – if appropriate -- is merely one factor for the court to consider.

[ 38 ] Section 30 of the CLRA offers a legislative tool that, in a proper case, may assist the court to make a decision. As such, s.30 should be given a broad interpretation. However, this does not mean that the assessments should be routinely ordered. An assessment should only be ordered where expert input is reasonably necessary to assist the court in determining the issues that are before the court. If, on all the evidence, the court is in a position to reasonably decide the issues, without the assistance of an assessor, then the assessment should not be ordered. (Kramer v. Kramer (2003) 2003 64318 (ON SC) , 37 R.F.L. (5th) 381 (SCJ)).

[ 39 ] The potential benefit of expert assistance in a particular dispute must be weighed against the fact that assessments are expensive, intrusive, and time-consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment. ( Butler v. Percy 2009 CarswellOnt 4523 (SCJ) ; Hodgson v. Hanson 2000 CarswellOnt 3769 (OCJ) ; Johnstone v. Brighton 2004 5851 (ON SC) , 2004 CarswellOnt 3229 (SCJ) ).

[ 40 ] Judges must be mindful of the fact that by the time custody disputes come to court, many children have already been exposed to a great deal of stress, disruption, and exposure to professionals. An assessment is intrusive not only for parents but also for children. In deciding whether to order an assessment, courts must carefully consider whether an additional layer of investigation can be justified, bearing in mind the potential negative impact of having children further drawn into the court process. ( Root v. Root 2008 CarswellOnt 3995 (SCJ) ). The assessment process is not benign. Where the advantages don’t outweigh the disadvantages – or where there really are no advantages – an unwarranted assessment can actually make children’s lives – and family dynamics -- worse.

[ 41 ] Delay is a particular concern where prospects of settlement appear remote, or where no “middle ground” appears viable. Where the parties are so entrenched and unyielding in their respective positions that nothing short of a trial will resolve the case, a marginally beneficial assessment should not be allowed to delay that final resolution. ( Archer v. Harries-Jones , supra).

[ 42 ] The burden is on the party requesting the assessment. They must establish that there is a need in this particular case for the type of information that only an expert can provide; information pertaining to the child that would not otherwise be discoverable. A court should not order an assessment over a party's objections unless the person seeking the assessment can establish a purpose for the assessment other than simply providing another person to decide the case or obtaining another point of view on what is in the child's best interests. ( Leonardo v. Leonardo 2002 CarswellOnt 4354 (SCJ) ).

[ 43 ] An assessment is not to be used as a fishing expedition, or a strategic fact-finding exercise by one parent hoping to discover evidence favourable to their position. ( Haggerty v. Haggerty , supra; Jonkman v Murphy , supra 2011; M. (D.M.) v. L. (D.P.) (1999) 1999 ABQB 37 () , 44 R.F.L. (4 th ) 433 (Alta Q.B.).

[ 44 ] The cost of the assessment will usually be an important consideration, although not necessarily determinative. But affordability can be a complex issue. Few families can readily afford an assessment – but even fewer can afford a lengthy custody trial if the dispute does not settle. A difficult cost-benefit analysis is required. How much will the expert evidence really help the Judge? What are the financial (and other) implications of delay? And how much would an assessment help the parties avoid (or simplify) a trial? Parties should understand that at best an assessment will simply provide more information – not a guaranteed resolution to the case. ( Archer v. Harries-Jones , supra).

[ 45 ] It is not sufficient for one of the parties to simply state that an assessment should be ordered because that party is prepared to fund the cost. The court, not the party, must decide whether it is necessary to engage the help of an expert. ( Haggerty v. Haggerty , supra).

[ 46 ] If an assessment is ordered, the court should identify what clinical issues the expert is to investigate; what type of information that the court is looking for in order to make a decision. It is also desirable to set out whether the assessment ought to be conducted by a psychiatrist, social worker or psychologist and whether testing is expected to be part of the process. ( B. (R.P.) v. P. (K.D.) 2006 CarswellAlta 1237 (Alta QB) ; Crewe v. Crewe , 2008 CarswellNS 710 (NS CA) .

[ 47 ] In his submissions on behalf of the Applicant, Mr. Nash suggested the 2006 Ontario Court of Appeal decision in Ursic v Ursic has reframed the test from “clinical issues” to “will it help the court?” However, the application of Ursic was considered recently by Mulligan J. in Jonkman v. Murphy (supra):

20 The Respondent relied on the Court of Appeal decision Ursic v. Ursic (2006), 2006 18349 (ON CA) , 32 R.F.L. (6th) 23 (Ont. C.A.). In that case, the Court of Appeal noted that the trial judge refused to order an assessment in a situation where both parties had consented to such an assessment. As Laskin J.A. said on the facts of the case before him at para. 33:

Third, before the trial began, both parties asked the trial judge to order an assessment report on Jacob. The trial judge refused their request, and proceeded with the trial. Although a trial judge has discretion whether to order an assessment, and although the trial judge in this case no doubt thought a speedy trial was in everyone's best interest, I expect an expert assessment of Jacob before trial would have been useful both to the court and to the parties.

[ 48 ] After thoroughly reviewing the jurisprudence, Mulligan J. dismissed the request for a motion, and reaffirmed the “clinical issue” approach:

29 In this case, there is clearly a conflict between the parents about custody or access for Hailey. However, the Respondent father has enjoyed access to Hailey on a regular basis since separation. The Respondent notes in his affidavit that Hailey is a happy, enthusiastic child, who is open and engaging. One of the Respondent's reasons for requesting an assessment is to assist him in refuting the Applicant's allegations about his alcohol abuse, reckless behaviour, narcissism and inappropriate parenting. Hailey is enrolled in the Rainbows program but the Respondent refuses to consent to additional counselling with York Region Family Services. The cost of an assessment is not a factor in this case, but assessments are intrusive and time consuming. There are no parent/child problems that require analysis. Having reviewed all of the affidavit material filed by the parties, I am not satisfied that there are clinical issues that would rise to the level requiring an assessment under s.30. A s.30 assessment should not be a vehicle to be used by one of the parties as a fact-finding exercise to support its case. In my view, the trial judge will be in the best position to determine the best interests of Hailey based on the evidence of the parties without the delay and intrusiveness that an assessment would represent. In the result, I decline to exercise my jurisdiction to appoint an assessor under s.30 of the Children's Law Reform Act .

[ 49 ] Mr. Nash referred to Levine v. Levine (1993) 1993 3413 (ON CJ) , 50 R.F.L. (3d) 414 (OCJ) as providing a “checklist” of factors which would support an assessment being ordered in this case.

[ 50 ] In support of his primary argument that clinical issues exist in this case, Mr. Nash noted the following:

a. Glenn has just been diagnosed with ADD.

b. He has recently been prescribed Concerta.

c. He has had behavioural issues, to the extent that he was asked to leave a daycare program.

d. A June 14, 2012 letter from Glenn’s school set out concerning behaviours including difficulty adjusting to routines of the classroom after a weekend absence; being easily irritated with angry outbursts; having difficulty developing positive relationships with his classmates; and being disruptive in class.

e. The Respondent father has complained that the Applicant mother sometimes falls asleep, raising concerns about her attentiveness to the child.

f. The Applicant mother is estranged from some members of her family, and is resistant to the allowing Glenn to have contact with the Applicant’s family.

g. The Respondent has commented the Applicant has already broken up with one boyfriend, and suspects she will break up with another. Mr. Nash said the Respondent is implying the Applicant has an unsavoury or unstable lifestyle.

h. The Respondent has commented the Applicant has already broken up with one boyfriend, and suspects she will break up with another. Mr. Nash said the Respondent is implying the Applicant has an unsavoury or unstable lifestyle.

i. The Respondent does not treat the Applicant with respect.

j. The parties communicate poorly.

[ 51 ] Mr. Nash suggested other considerations also justify an assessment:

a. The assessor would have access to information not otherwise available to the court. The assessor could observe interaction between Glenn and each parent in a fairly natural setting. He said in contrast, a judge would only be able to observe the parents through the “artificial environment” of testimony in a courtroom.

b. This is a high conflict case in which each party has drawn a line in the sand. The current arrangement is equal timesharing, but each parent now wants primary residence with Glenn going to school in their community. An assessment is required to help break the impasse.

c. An assessment is necessary to help the parents understand the needs of the child and the need for the parents to cooperate.

d. While an assessment may be intrusive, a trial will be more intrusive and damaging to the family unit.

e. While an assessment may be expensive, a trial will be more expensive. With the Applicant representing that she will “live or die” by the assessor’s recommendations (subject to an issue arising as to methodology or changed circumstances) an assessment would save the parties money.

f. An assessment won’t delay anything. If commenced immediately, the assessment could be completed in time for the October 2012 settlement conference currently scheduled.

[ 52 ] While the Respondent argued that an assessment is not affordable, Mr. Nash submitted that cost should not be a prohibiting factor:

a. With the Applicant earning around $25,811.00 and the Respondent earning around $79,785.00, between them they earn enough to fund an assessment – either sharing the cost equally or in proportion to their incomes (and subject to the court ordering any redetermination of costs at the end of the process).

b. In the alternative, approximately $22,000.00 remains held in trust from the net proceeds of sale from the former matrimonial home. The projected minimum cost of about $7,500.00 could easily be funded from the trust monies – as well as any cost overrun which may arise.

c. In the further alternative, the Applicant is prepared to fund the entire cost of the assessment by borrowing funds, subject to later reapportionment.

[ 53 ] Ms. Jarvis countered that Linton makes it clear that the existence of clinical issues is the only basis for ordering an assessment under s. 30. In arguing that there are no clinical issues requiring the expertise of a professional, she noted:

a. The parties separated almost four years ago. They worked things out on their own for years without the necessity of any court or external assistance.

b. They have had a de facto joint custody/parallel parenting arrangement since separation. It is still in place and working well.

c. The Applicant has stated she is willing to agree to joint custody if a parenting co-ordinator is in place.

d. This is not a case of above average conflict between the parties.

e. There has never been any police involvement.

f. There are no allegations of child protection issues arising.

g. There are no allegations of abuse.

h. There are no mental health concerns and no allegations of parental alienation.

i. There are no allegations of either parent engaging in inappropriate communications with the child.

j. There are no allegations of denial of contact with the child (although the Respondent has made some complaints about late exchanges).

k. They are respectful with one another.

l. There is no history of nasty e-mails or unpleasant communications.

m. There have been no altercations.

n. There are no allegations of drug or alcohol abuse.

o. The parents attend school events and parent-teacher meetings together.

p. They attend the child’s doctor’s appointments together.

q. While the Respondent may have unilaterally enrolled Glenn in a number of extracurricular activities, these activities only arise during his times, and have no negative impact on the Applicant or her relationship with the child.

r. The Applicant may be unhappy that the Respondent has taken Glenn to visit the Applicant’s mother a couple of times, but this has been on his days with the child and Glenn has enjoyed it. There is no evidence of any harm arising.

s. While the Respondent has expressed concern that twice the Applicant couldn’t be awakened by the child, and twice the child was taken to school late by the Applicant – these are not clinical issues.

t. While Glenn has recently been diagnosed with ADD, this in itself is not a clinical issue requiring a custody assessment. The school is working with the child’s doctor. Glenn has recently been put on a new drug, Concerta, and his prescription may need to be modified. He may also need some social training regarding impulse control.

u. While the school has identified that Glenn is experiencing certain problems, nothing in the letter from the school suggests that the parents are at fault – either individually or jointly. Both parents are continuing to work with school officials. They are both equally committed to dealing with his problems and working with a united front.

v. If an assessment were ordered, it would likely be conducted by a social worker, who would not have the expertise to deal with ADD and ADHD in any event.

w. While the assessors proposed by the Applicant have quoted $6,000 to $7,500.00 as an initial retainer, the total cost could easily be $12,000.00 or more, and the parties simply cannot afford this.

x. An assessment is not needed to ascertain the wishes and preferences of a six year old, because at his age little weight would be placed on his views about custody.

[ 54 ] Interestingly, both counsel agree that even if an assessment were to be ordered, there’s not enough time for the assessor to help resolve a critical motion already scheduled to be argued in August – to determine whether Glenn will start full time grade 2 in either Hamilton or Oakville. Counsel agree the outcome of that motion may re-calibrate the broader discussion, because neither party would want to disrupt the boy’s schooling once he gets settled in.

FINDINGS

[ 55 ] I find that the Applicant has failed to establish that an assessment should be ordered under s. 30 of the CLRA .

[ 56 ] The problems described by the Applicant do not constitute clinical issues. Not every issue relating to a child’s development constitutes a clinical issue, particularly in the absence of any suggestion that either parent is causing or compounding the child’s difficulties. In this case, the parents have a long history of co-operating in relation to Glenn and working together. They may now have a significant disagreement as to which regime is preferable for the future. But the Applicant has not set out any facts or issues which would require expert guidance or interpretation for a judge.

[ 57 ] The other considerations raised by Mr. Nash -- a sympathetic plea that experts can always help, and assessments are less expensive and intrusive than trials – these considerations which could be advanced in virtually every custody or access dispute before the courts.

[ 58 ] And the Applicant’s ultimate offer to absorb the (initial) cost of the assessment doesn’t change the rest of the analysis. She has not met the requirements in relation to s. 30.

[ 59 ] The Applicant’s motion is dismissed.

[ 60 ] Counsel may deliver written submissions regarding costs on the following timetable:

a. Submissions of the party requesting costs to be served and filed within 21 days;

b. 15 days after those submissions are served, any response is to be served and filed.

c. 7 days after that response is served, any reply is to be served and filed.

[ 61 ] Counsel may arrange to see me if there are any other issues to be dealt with.

POSTSCRIPT

[ 62 ] As I commented to the parties: their motion materials were excellent; their counsel’s submissions were thorough, well-prepared and most helpful to the court.

[ 63 ] It is a shame that so much time and money went into a somewhat misguided debate – in large part about whether there’s enough time and money to help this child.

[ 64 ] The Applicant has suggested a parenting co-ordinator – an option the court can’t impose. But in this particular case a parenting co-ordinator sounds like a good idea.

[ 65 ] A parent who successfully defends a motion for a s.30 assessment should not presume that the court disfavours professional assistance in resolving children’s issues – or, that we favour trials.

Pazaratz J.

Released: June 26, 2012

COURT FILE NO.: F/435/11

Michelle Catherine Baillie Applicant – and – Jeffery Allan Middleton Respondent

REASONS FOR JUDGMENT

Pazaratz J.

Released: June 26, 2012