ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F1285/05
DATE: 2012-08-16

BETWEEN:

J.L.M. Applicant – and – P.D.A.B. Respondent

Elizabeth Fleming – Counsel for the Applicant
Martin Vamos – Counsel for the Respondent

HEARD: August 9, 2012

The honourable mr. justice pazaratz

1 . With school resuming in September and a custody trial scheduled for November, the issue on this motion is whether a year-old equal time sharing arrangement should change for nine year old twins M.1 and M.2 – based on a recent s. 112 report and/or other developments.

BACKGROUND

2 . The parties separated in approximately 2005 after a tumultuous relationship which included significant violence by the Respondent father. The conflict continued even after separation.

3 . On April 24, 2006 Justice Steinberg made a final order pursuant to Minutes of Settlement which included:

a. Custody to Applicant mother.

b. Respondent to have liberal and generous access including alternate weekends.

c. Access-related disputes to be referred to mediation.

d. Respondent to pay child support of $235.00 per month based upon an anticipated income of $22,300.00.

e. Respondent to provide health care and life insurance coverage available through his employment.

4 . On July 17, 2009 Justice Mazza made an order somewhat revising the Respondent’s access, although the basic pattern of alternate weekends was continued.

5 . On June 8, 2011 Justice Lafreniere made a consent order increasing the Respondent’s child support payments to $458.00 per month based upon an income of $31,100.00, and fixing arrears owing to Ontario Works at $2,300.00 as of June 1, 2011.

6 . In early July 2011 the Children’s Aid Society of Hamilton (“CAS”) became involved regarding safety concerns about the children while in the care of the Applicant mother. The main concern was she was leaving the children alone for eight hours at a time.

7 . The (initially self-represented) Respondent quickly brought this motion, based on wide-ranging allegations of neglect by the Applicant. His requests included:

a. Custody of both children.

b. Any access by the Applicant to be supervised.

c. A suspension of his child support payments.

8 . On July 15, 2011 Justice Mazza made an order at a contested emergency motion. This is the order the Respondent now seeks to change on an urgent basis. The order included the following:

a. The children to reside with both parents equally, on an alternate-week basis, with transfers at 8:00 p.m. on Sundays.

b. Daily telephone contact for each parent when children not in their care.

c. Office of Children’s Lawyer (“OCL”) requested to investigate.

9 . The Applicant failed to submit her OCL intake form on time, so at a Case Conference on August 11, 2011 Justice McLaren ordered her to fax the intake form the same day.

S. 112 REPORT

10 . On June 27, 2012 OCL clinical investigator Kimberly Chapman issued a 39 page s. 112 report which raised many serious concerns, and made the following recommendations:

a. Respondent father to have final decision making authority in relation to both children.

b. Children to reside primarily with the father on weekdays with the mother to have time each weekend, on a four-week cycle. During the first three weeks the mother would have the children Friday after school until Sunday 3 p.m. On the fourth week the mother would have Friday after school until Saturday noon. When school is not in session her Fridays would commence at 9 a.m.

c. Applicant to have Mother’s Day; Respondent to have Father’s Day.

d. Equal sharing of the period December 24-26.

e. Children to be supervised by an adult when they are in the company of their older brother B. (the Applicant’s child of another relationship).

f. Applicant should attend her doctor’s office and seek a referral for a psychiatric assessment.

g. Applicant should get counselling to address the impact of domestic violence and learn strategies for parenting post separation.

h. Respondent should attend counselling to address issues of emotional management and learn strategies for parenting post separation.

i. Respondent to engage children in counselling to address impact of witnessing domestic violence and living in a high conflict separated family.

j. If direct communication about the children is required, communication should be between the Applicant and the Respondent’s wife Joanne.

k. Parties should work cooperatively with CAS until CAS determines their involvement is no longer necessary.

11 . The Respondent father now seeks immediate implementation of the OCL’s recommendations, at least as they relate to time-sharing. The Applicant opposes any change to the status quo – ie, the temporary equal time-sharing arrangement in place since July 2011 – pending the November trial.

12 . Notably, both parties take the position the status quo is not working. Each parent will be seeking sole custody at trial.

SCHOOL

13 . There are immediate issues relating to the girls’ schooling:

a. The Respondent father asks that in September 2012 M.1 and M.2 should transfer to […] Elementary School which is in his catchment area. They would be able to attend school with his wife’s child.

b. Last year they attended […] School, which was in the catchment area for the Applicant’s former residence.

c. On July 1, 2012 the Applicant was evicted from her former residence. Her affidavit materials are very sketchy about this. No real explanation was provided.

d. During submissions her lawyer explained the Applicant has gone to live with her father on a short-term basis. Her plans are uncertain. She doesn’t know when she will be moving; where she will be moving; or what school catchment area she will live in.

e. The Applicant is apparently hoping to find rental accommodation in the same catchment area as the Respondent. But she has no idea if this will work out.

f. Initially, the Applicant opposed all aspects of the Respondent’s motion. However during submissions the Applicant’s lawyer conceded that with school starting in less than a month, a decision has to be made.

g. Ultimately, during hearing of the motion Applicant consented to an order that in September 2012 the girls will attend the school nearest the Respondent’s home. The Applicant may or may not end up living in that same catchment area.

14 . That determination has implications with respect to the broader issues:

a. Should the section 112 recommendations be implemented on a temporary basis, just months before trial?

b. Have there been other material changes justifying variation of a temporary order?

c. Indeed, do the very recent changes in relation to schooling and the Applicant’s uncertain housing plans in themselves constitute a material change, compared to the circumstances in existence when Justice Mazza made his July 15, 2011 order?

THE LAW – ASSESSMENTS AT MOTION

15 . Assessments and section 112 reports are generally prepared for consideration at trial – where the report will form part of the evidence. A trial affords an opportunity for thorough evaluation of all aspects of the expert’s report including the author’s credentials, methodology, observations, factual findings, theories and recommendations. There is no equivalent opportunity for such testing and analysis at the motions stage. Nor is there the opportunity to assess credibility and factual disputes; or consider the weight to be given to the assessment in the context of the overall evidence which will be available at trial. Genovesi v. Genovesi (1992), 1992 8562 (ON SC) , 41 R.F.L. (3d) 27 ; Grant v. Turgeon 2000 22565 (ON SC) , [2000] O.J. No. 970 (S.C.J.) .

16 . As a result, courts should be extremely cautious about relying on untested professional reports at a motion pending trial, or implementing even some of an assessor’s recommendations on a temporary basis. Genovesi (supra); Grant v. Turgeon (supra); Mayer v. Mayer , 2002 2753 (ON SC) , [2002] O.J. No. 5303 ; Kirkham v. Kirkham 2008 CarswellOnt 3644 (S.C.J.).

17 . The status quo will generally be maintained on an interim custody or access motion; particularly if it has been in place for a significant period of time; and most particularly if a temporary order is already in place. The court should generally not disrupt the status quo unless there is a compelling reason, especially if there will soon be an opportunity to more fully consider the matter at trial. Grant v. Turgeon (supra); Dyment v. Dyme nt 1969 CarswellOnt 978 (Ont. C.A.).

18 . In rare cases, an assessment may either reveal or confirm the existence of an urgent problem requiring immediate attention or correction. Genovesi (supra). Even in those cases, courts should act with caution, implementing only such changes as may be required to rectify the situation which cannot be allowed to continue until trial. The court must assess whether the existing arrangement is actually or potentially harmful to the child; whether the child’s best interest requires an immediate change. Samson v. Samson 2006 42645 (ON SC) , [2006] O.J. No. 5108 (S.C.J.) ; Benko v. Torok 2012 CarswellOnt 8213 (O.C.J.) It will only be rare or exceptional cases where an assessor’s recommendations should be acted upon immediately before there is a full and thorough investigation provided by a trial. Verma v. Chander 2009 ONCJ 136 () , 2009 CarswellOnt 1859 (O.C.J.) ; Winn v. Winn 2008 63195 (ON SC) , 2008 CarswellOnt 7116 (S.C.J.) .

19 . There can be no presumption that an assessor’s recommendations will – or should -- inevitably prevail. The court cannot delegate decision-making authority to the assessor. Dunnett v. Punit 2006 CarswellOnt 7259 (O.C.J.) . Beyond concerns about disrupting the existing status quo, the court must consider the potential impact of creating a new status quo on the eve of trial. Interim implementation of an assessor’s recommendations can be far from a benign stop-gap measure. It can affect the trial and its outcome.

20 . In some interim decisions courts have drawn a distinction between custody and access recommendations, more readily implementing assessor’s recommendations in relation to the latter. I prefer the analysis of Zisman J. in Benko (supra) in which she noted whether the issue is custody or access, the court should exercise great caution in relying on the untested observations and recommendations of an assessor.

21 . Similarly, some cases which have relied on assessments at the interim stage have drawn a distinction between the observations and evidence of the assessor as opposed to the conclusions of the assessor. In Bos v. Bos 012 CarswellOnt 7442 (S.C.J.) Mitrow J. acknowledged “an assessment report ought to be approached with caution prior to trial.” The court went on to state:

8 However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statements made by the children to the assessor. It is not the report's recommendations, but its substance and analysis that is of value. [Emphasis in original]

22 . In Bos Justice Mitrow emphasized that at every stage – interim motions and trials – the court has an absolute obligation to address and safeguard the best interests of the child. The court stated:

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 7631 (ON SC) , [2004] O.J. No. 1738 (S.C.J.) and Kerr v. Hauer 2010 ONSC 1995 () , [2010] O.J. No. 1506 (S.C.J.) ]. 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.

23 . At paragraph 26 of Bos Justice Mitrow suggested the court’s considerations should include the following:

(a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b) What other evidence is before the court to support the change requested? c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge? d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

24 . In Koeckeritz v. Secord , 2008 CarswellSask 133 (Sask. Q.B.) the court provided a similar summary of the factors to be considered in determining whether assessments should be used at the interim stage:

1. The nature of the application (i.e. whether it is an interim application or an application for variation);

2. The nature of the relief sought (i.e. custody, access, a change from supervised to unsupervised, visitations, etc.);

3. The purpose of the assessment (i.e. whether it is for use by the chamber judge and/or at trial);

4. The scope of the assessment (i.e. whether it is a full custody/access assessment, a focused assessment, a voices of the children report, etc.);

5. Whether the assessment raises some immediate concern relating to the health and/or safety of the children;

6. Whether the parties agree to the use of the assessment;

7. Whether an evidentiary basis has been established for the opinions expressed in the assessment; and

8. Whether the assessor can be subjected to cross-examination before the report is used.

9. But the majority of cases adopt a more straightforward and fairly high threshold for interim use of assessments, as summarized by Wolder, J. in F.I. v S.P.P . 2010 CarswellOnt 8025 (O.C.J.) at paragraph 13 :

[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.

26. Justice Wolder added at paragraph 18:

[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 , (1993), 1993 16134 (ON SC) , 50 R.F.L. (3d) 8 , at page 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.

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.

ANALYSIS

28. In this case the OCL’s s. 112 report is detailed and troubling. It includes information from the parents, the children, and numerous collateral sources including CAS, the police, health care providers and educators. I am mindful that many of the facts are contentious, and the author’s conclusions and recommendations are untested.

29. However, there are observations and undisputed facts within the report which – combined with the evidence of the parties themselves – highlight the need for immediate intervention to address urgent issues.

30. The most pressing issue is a fundamental concern about the children’s safety while in the care of the Applicant mother:

a. The Applicant is a single mother who, at various times, has had to work evenings or overnights.

b. The Respondent has repeatedly expressed concern the Applicant leaves the children unattended for extended periods, including up to four hours after school each day.

c. The children have confirmed much of what the Respondent says.

d. At a disclosure meeting on May 11, 2012 the clinical investigator advised the parties her recommendation was going to be a continuation of the equal time sharing arrangement. While the OCL had many concerns about the Applicant, the investigator was also mindful of the long history of the children having resided primarily in the Applicant’s care.

e. However, at the disclosure meeting the clinical investigator clearly and repeatedly advised the Applicant that she was never to leave the children alone under any circumstances.

f. Less than a month later – before the final s. 112 report was released – the same issue dramatically arose once again.

g. On the evening of Sunday June 3, 2012, the Applicant initially called the Respondent advising she was working that evening and asked him to keep the girls overnight and take them to school in the morning. However, the Applicant then changed her mind, and picked up the children, advising they would be left with their aunt for the night.

h. The Applicant ended up taking the children home and leaving them unattended while she went to work overnight. (She later explained she fell asleep and when she woke up she hurried to her workplace and forgot she hadn’t called her sister to care for the children.)

i. The police became involved, and the children were found home alone after midnight. When the police contacted the Applicant at work she attempted to deceive them, advising that the children were safe with her sister. She hurried home attempting to rectify the problem, not realizing the police were already at the house with the children.

j. The Applicant has now been charged under the CFSA for leaving the children alone.

k. The Applicant’s reply materials on this motion gloss over the incident – and the apparent recurring problem of her leaving the children unattended.

l. The Applicant’s affidavit offers no explanation or reassurance this same problem will not arise again. She has provided no information about her employment, her work hours, or child care arrangements.

m. She has shown no insight about the danger of leaving young girls alone for extended periods, notwithstanding the Respondent’s repeated complaints about this – and notwithstanding the OCL social worker’s very specific admonition on the topic.

n. The Applicant’s efforts to deceive the police that evening are even more troubling in the context of other evidence the Applicant has also lied to CAS and to the OCL about similar problems.

o. Following the June 3, 2012 incident, the OCL changed its position: Alternating weeks are no longer recommended. Instead, the OCL suggests the Respondent’s time should increase, primarily during weekdays (which coincides with the OCL’s separate recommendation the Respondent should have decision making over children’s issues such as education). The Applicant’s blocks of time should be decreased, and focus on weekends, to reduce her need for child care.

31. The OCL clinical investigator expressed other serious concerns:

a. The Applicant’s decision on June 3, 2012 to leave the children home alone rather than allow them to spend an extra overnight with the Respondent reflects a broader concern about ongoing parental alienation by the mother.

b. The Applicant openly states she believes the Respondent has nothing to offer the children, and everyone would be better off if the Respondent was simply out of their lives. She feels he is a terrible person and blames him for everything bad in her life.

c. The clinical investigator expressed concern the Applicant is making it difficult for the children to feel free to love their father without emotional consequences from their mother. And the equal time sharing arrangement (combined with daily phone calls) gives the mother significant opportunity to undermine the children’s relationship with their father.

d. Both parents say the week about arrangement is very disruptive for the children.

e. Alternating weeks requires ongoing communication and co-ordination between parents. But the Applicant and the Respondent don’t communicate at all . They don’t trust each other. They can’t work together. Necessary information is not efficiently conveyed back and forth between households.

f. The Applicant lied about a taped telephone conversation in which she pressured one of the children to talk privately, quietly, and keep secrets from the Respondent.

g. The Applicant has lied to school authorities about the Respondent, and has interfered with the Respondent’s ability to monitor and be involved with the girls’ ongoing educational issues. The Respondent has been more consistent and effective in dealing with their school.

h. While the Applicant emphasizes that CAS has no concerns about her, the OCL investigator feels “CAS is heavily reliant upon Ms. J.L.M.’s willingness to be forthcoming with them.” The OCL questions whether the Applicant has been any more honest with CAS than she has been with other service providers. A CAS letter dated June 26, 2012 described the Applicant as cooperative, and stated there are “no protection concerns” in relation to either parent.

32. The Applicant appears to acknowledge the OCL’s expression of concern about her son B., who is one year older than M.1 and M.2. B. has been in CAS’ care for about a year, and has many problems.

33. As well (although this is not an emergency issue) the Applicant continues to receive full child support for two children despite the year-old equal time sharing arrangement. She has never disclosed her employment income.

34. Ultimately, on page 35 of the section 112 report the clinical investigator gives an ominous warning:

“Despite incredible conflict and turmoil between their parents, (the children) continue to do fairly well in their day to day lives. However, there are reasons to believe that the children’s resiliency is being tested and if their family situation is not brought under control, their emotional well being may be compromised.”

35. The question then: Should we act now – impose changes based on untested information – or leave things just as they are until trial?

36. The arrival of the s. 112 report does not in itself constitute a material change in circumstances. But the observations, situations, and worsening problems reported by the clinical investigator constitute new and troubling information. Notably, many of these ongoing problems are confirmed by the parties themselves.

37. While caution is required, the court cannot ignore:

a. The Applicant’s continuing problems organizing and prioritizing the children’s lives.

b. Her completely uncertain residential plans.

c. Her vague and unsatisfactory explanation about leaving the children unattended overnight on June 3, 2012 -- in the context of ongoing complaints about a pattern of neglect.

d. The Applicant’s conspicuous failure to provide reassurance that she has adequately addressed employment and child-care issues.

e. The reality that – on consent – the children will now be attending school in the Respondent’s district.

f. The obvious benefit to the children of bringing structure and security to their situation in time for the start of the new school year.

g. The virtual certainty that the “alternating week” status quo will eventually come to an end – no later than the November trial – based on universal comments by the Applicant, the Respondent and the clinical investigator that this arrangement is jeopardizing the emotional well being of the children.

THE ORDER

38. Temporary order on consent:

a. The children M.1 and M.2 shall be registered in L… S… for the school year commencing September 2012.

b. The Applicant shall participate in hair follicle testing covering a six month period for cocaine and oxycontin, provided that there is no cost to her. She shall make her best efforts to have such testing conducted through a government agency (for example, CAS). If the Applicant is able to provide the Respondent with written corroboration that government-funded testing is not available, the Respondent shall have the option of requiring that the Applicant attend for such testing at his expense.

c. The children’s health cards and birth certificates shall accompany the children between the respective parents’ homes. The Respondent shall ensure both parents have a notarized copy of both documents.

39. Temporary order not on consent:

a. Timesharing shall be based on a four week rotating schedule. During weeks one to three, the children shall be with the Applicant from Friday after school (or 9:00 a.m. if school is not in session) until Sunday at 3:00 p.m. On the fourth week the children shall be with the Applicant from Friday after school (or 9:00 a.m. if school is not in session) until Saturday at noon. At all other times the children shall be in the care of the Respondent.

b. The Applicant shall not leave the children without adult supervision at any time.

c. The Respondent shall have final decision making authority in relation to the children’s educational and health issues.

d. The children shall be supervised by an adult when they are in the company of their brother B.

e. The Respondent’s child support payments to the Applicant shall be suspended effective September 1, 2012. Enforcement of arrears shall also be suspended.

f. The Applicant shall provide the Respondent with copies of her tax returns and notices of assessment for 2009, 2010 and 2011 no later than September 15, 2012. The parties shall exchange updated financial statements and statements of earnings to date for 2012 no later than October 1, 2012.

g. Support Deduction Order to issue.

40. If any issues remain (other than costs) counsel may arrange to see me.

41. If costs are claimed, the party seeking costs shall serve and file written submissions within 21 days; responding submissions shall be served and filed within 15 days; any reply submissions shall be served and filed within 7 days.

Pazaratz J.

Released: August 16, 2012

COURT FILE NO.: F1285/05
DATE: 2012-08-16

J.L.M. Applicant – and – P.D.A.B. Respondent

_____________________________________________ REASONS FOR JUDGMENT _____________________________________________
Pazaratz J.

Released: August 16, 2012