SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-18503
DATE: 20130712
RE: JAMES RYAN, Applicant
A N D:
**MARGARET SCOTT, Respondent
BEFORE: MESBUR J.
COUNSEL:
Gary Joseph, for the Applicant
Melanie Sager, for the Respondent
HEARD: July 9, 2013
E N D O R S E M E N T
Overview:
[1] The parties are the parents of Elly, age 3.[^1] The parties have never lived together. When Elly was born on January 15, 2010, the parties both lived in Ottawa. Shortly after Elly’s birth, father commenced an application seeking joint custody, with equal parenting time under a “parallel decision making regime.”
[2] Mother had been employed by the Toronto District Catholic School Board before moving to Ottawa in 2007. When she was still on maternity leave after Elly was born, mother brought a motion to permit her to move back to Toronto. Her motion was granted in July, 2010. Father appealed the decision. His appeal failed.
[3] Father’s application was tried over four days in May 2011 before Maranger J who ordered the parties to have joint custody with Elly residing primarily with the mother who would have day to day decision making responsibility. The decision set out a parenting schedule which has Elly spending the following time with father:
a) Every Tuesday from noon until 4:30 p.m.;
b) Every Wednesday from 8:30 a.m. until 4:30 p.m.;
c) Every other Saturday and Sunday from 9:00 a.m. to 5:00 p.m., changing to alternate weekends from Saturday at 9:00 a.m. until Sunday at 5:00, overnight, once Elly turned two;
d) At least five set day visits in Ottawa each year;
e) Skype communication two evenings per week;
f) Exchange of information about Elly in writing every week;
g) Make-up time if access is missed; and
h) Full disclosure of Elly’s progress at school, including direct communication with teachers and school authorities. Similar disclosure concerning health records and health information is also required.
[4] The decision went on to provide that if father “does re-establish himself in the City of Toronto, i.e. obtain a residence in Toronto, sell his residence in Ottawa, find employment in the City of Toronto, and decide to live in Toronto on a full-time basis, this court file should be transferred to that jurisdiction and the order would be subject to a complete review six months from the date of this decision, as a change of residence would constitute a material change in circumstances of the parties.”[^2] Father now lives in Toronto.
[5] In addition, the order went on to say “In any event the entire access/parenting regime is subject to review upon the child reaching three years of age.”[^3]
[6] Elly turned three in January, 2013. Shortly after Elly’s birthday, mother began this motion to change Maranger J’s final order. In her motion to change, mother seeks to change the final order to an order for sole custody in her favour, and to reduce father’s access to Wednesdays from 4:00 to 6:30 and alternate weekends from Saturday at 9:00 until Sunday at 4:00. She also proposes a holiday schedule.
[7] Father’s response to the motion to change is to request a parallel parenting order for Elly regarding decision-making and a 50/50 time sharing parenting schedule.
[8] On this motion, mother asks the court to order a custody assessment under s.30 of the Children’s Law Reform Act. She also asks the court to clarify which party is responsible for Elly’s transportation to and from her time with her father.
[9] Father has brought a motion of his own. In it, he seeks an interim order changing the final order of Maranger J to provide that Elly spend half of her summer with father, with transitions between the parents to occur in Ottawa. He has set out what he describes as a “2/2/3” schedule. Alternatively, he says the summer schedule should be “week about”, again, with transitions occurring in Ottawa.
[10] Father also seeks what he calls “costs thrown away” in relation to steps he says he had to take to force mother to comply with the order requiring a change to Elly’s last name.
The law and analysis:
Custody assessments
[11] Section 30(1) of the Children’s Law Reform Act (CLRA), allows the court, by order, “to appoint a person who had 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.” Section 30(2) gives the court broad discretion to make the order on or before the hearing, and with or without a party’s asking for the appointment.
[12] Section 30(4) prohibits the court from appointing a person to conduct the assessment unless the person has consented to act, report to the court, and do so within the time specified in the order. Here, mother proposes the assessor Jacqueline Vanbetlehem who has executed a consent to act. Father’s counsel has no objection to Ms. Vanbetlehem’s qualifications. He simply says a s.30 assessment is not warranted in this case.
[13] For some time, s.30 assessments were routinely ordered. In 1994, the Divisional Court opined in Linton v. Clarke[^4] that assessments should be limited to cases where there are clinical issues to be determined, and should not be ordered routinely.
[14] In Ursic v. Ursic,[^5] however, the Ontario Court of Appeal made no reference to the necessity of clinical issues as a precondition to ordering an assessment, and held that the assessment report prepared after trial but before the appeal in that case was of great assistance to the court in deciding the appeal. The court echoed with approval the reasons of Gillese J.A. on the stay motion in the case where she said:
In particular, in a situation where there is a high degree of conflict and the child is but a toddler. [sic] This is a situation that cries out for expert assessment and the benefits such information could give trial judge. While assessments are the discretion of the court, it may have been an error to refuse to order one where such expert testimony would be of such use and need to the trial judge.
[15] More recently, Kiteley J made a careful analysis of the interplay between decisions such as Linton v. Clarke and Ursic v. Ursic in determining whether a “clinical issue” is still a precondition for ordering an assessment. She reviewed a long history of the case law on assessments and concluded “the presence of a ‘clinical issue’ or ‘issues of pathology’ is not a pre-requisite for the making of an order pursuant to s.30…”[^6]
[16] Among other things, she points out there is no requirement for a clinical issue in the statute. She also notes there has been no judicial interpretation of what a “clinical issue” might be. Judges are not trained to identify “clinical issues”. There is no judicial consensus on what constitutes a “clinical issue”. I agree with Kiteley J’s analysis and conclusion regarding the necessity of a clinical issue as a prerequisite to ordering an assessment. I agree it is not required. I also agree with the decision of the Divisional Court in Linton that assessments should not be ordered routinely.
[17] How, then, should the court decide whether to make an order? In Glick v Cale Kiteley J provides a lengthy, but non-exhaustive list of criteria which might assist the court in deciding whether to order an assessment or not. Her list is extremely helpful and focused. I will address those criteria that are particularly relevant to my decision here.
[18] What was the parenting relationship like before separation? Here, there was none. The parties never lived together, and have never co-parented. Instead, most of Elly’s young life has been marked by constant litigation and conflict between her parents.
[19] Are the parents unable to make any decisions without court intervention? Clearly that has been the case here. The parties cannot even agree on who should pick up and drop off their child after her time with her father.
[20] Is the relationship between the parents so unhealthy one or both are unable to identify their child’s best interests and act on them? Maranger J commented on father’ lacking insight into his daughter’s needs. He also pointed to some errors in judgment on father’s part, as well as issues he has with anger management.
[21] Do the parents have a mutual disregard for the other’s ability to parent? Each party finds significant fault with the other’s parenting ability here and blames the other for any problems.
[22] How old was the child at the date of separation, and how old is she when the assessment is requested? Here, the conflict began practically at the time of conception. Elly is now three and a half, and has known nothing but parental conflict throughout her young life. Her stage of development is now markedly different than it was at the time of trial when she was only sixteen months old.
[23] Is the child manifesting behaviour that might be associated with stress caused by parental conflict? There is evidence this is so. Both mother and the school report Elly’s acting out and aggressive behaviour following time with her father. They both report Elly’s exhibiting undue fatigue following access. Father describes Elly as upset about things her mother has told her. He complains mother speaks to Elly about adult issues. He sees this as inappropriate.
[24] Is there an alternative, such as appointing the Office of the Children's Lawyer to represent the child and ascertain her wishes and preferences? Since Elly is only three, this option is not appropriate, although it is one the father himself suggested in his answer to the motion to change.
[25] What is the cost? The proposed assessor has quoted a fee of about $330 per hour, with an estimate of 50 to 60 hours to conduct the assessment plus the cost of writing a report. I have no evidence from either party this is unaffordable.
[26] All these factors weigh heavily in favour of ordering an assessment. In addition, when I consider some of the contents of the blog father recently maintained, including disparaging comments about the mother, the courts, and the legal system generally, I have concerns about his insight into his daughter’s needs. This is particularly so where he clearly identified himself as the author of the blog, and included his address and telephone number. While he did not specifically identify Elly, it would not be difficult for a reader to do so.
[27] There are also factors father raises that support an order for an assessment. He suggests the mother has mental health issues. He suggests mother’s behaviour is consistent with “parental alienation”. I do not know if he is correct, but if he is, these would constitute issues that warrant an assessment.
[28] I also note that in father’s response to the motion to change he suggests counselling would be helpful. He says he believes if counselling were ordered and reports made available to the court then it is possible to make some progress with the issues between the parties.[^7] He also alleges mother “continues to make false allegations to try and discredit me as a parent. The Office of the Children's Lawyer will provide a 3rd party objective assessment to assist the court in determining the facts of the situation.”[^8]
[29] I note, as well, that the DRO in her screening report made a note that father had surreptitiously recorded the proceedings. She writes: “Argument ensued but eventually father erased or said he did.” This gives me serious pause. I do not know if father’s behaviour indicates the presence of “clinical issues”. It does, however, give me sufficient concern to decide an assessment is appropriate in this case, particularly when combined with the concerns father raises about mother’s parenting.
[30] Accordingly, an order will go requiring a s.30 assessment with Jacqueline Vanbetlehem. The assessment will begin in August 2013. The assessor is apparently available to begin then. The parties will share the cost equally, subject to a trial judge reapportioning the cost at the end of the day. Both parties will cooperate fully with the assessor, so that she can complete her work, or at least produce an interim report prior to the settlement conference/trial management conference I have set for October 23, 2013 at 11:00 a.m.
Transportation responsibility
[31] Mother suggests father should be solely responsible for Elly’s transportation to and from her father’s house. Although the order is silent on this issue, initially this was the arrangement, until father unilaterally decided he would no longer return Elly to mother’s home at the end of her time with him.
[32] The parties live a five minute drive or fifteen minute walk from one another. I see this as a power struggle between the parents. It has very little to do with Elly’s needs or best interests. Mother suggests father should drop Elly at daycare instead of at her home. She does not wish to have contact with him.
[33] Father does not see why he should do all the transporting. I must say that given father’s wish to have more time with Elly, I am surprised that he would not want to spend the extra time with her taking her back to mother’s care at the end of her time with him.
[34] Given father’s wish to have more time with Elly, I therefore order that he will provide the transportation for her both to and from her time with him.
Summer access
[35] The current final order provides that Elly would be in her father’s care for two non-consecutive, one-week periods from 9:00 a.m. to 4:30 p.m. Father now wants a summer schedule that would have Elly with him on Monday, Tuesday, Friday, Saturday and Sunday of one week, and on Wednesday and Thursday of the following week, alternating throughout the summer. He proposes that transitions occur in Ottawa, where he also maintains a home and where a large part of his extended family resides.
[36] Alternatively, father says Elly should be with him on alternate weeks, again with transitions occurring in Ottawa.
[37] Father says with this arrangement, he and Elly would be able to spend time with her grandparents in Ottawa, see extended family in Ottawa, and take trips to zoos, water parks, and picnics. He suggests he could go to his girlfriend’s cottage with Elly and expose her to fun activities such golf, soccer, bike riding and so on.
[38] Father put this proposal to mother’s counsel at the end of May. She did not respond, other than to say the proposal was unacceptable. She suggested no alternative.
[39] While father’s proposed summer plans with Elly have much to commend them, he puts forward no cogent reason why his time sharing proposal is necessary for him to carry out those plans, or why his proposal is in Elly’s best interests.
[40] I am concerned about the amount of travel father’s initial proposal would involve for Elly, particularly with a move every two days, and travel to and from Ottawa. That is a great deal of upheaval for a little girl.
[41] I am mindful that what father essentially seeks is an interim variation to a final order. I am also mindful of case law that says there must be compelling circumstances to change a long standing status quo on a motion.[^9] Father did not even raise this issue with mother’s counsel until the end of May of this year. Summer returns each year with surprising regularity. It can hardly have been an unforeseen circumstance to father that summer would occur this year as well, only a month after he made his request for the change in summer access. I see this as an unreasonable position to take, and one which does not take Elly’s interest into account. Small children need a routine. They like to know where they will be, and what the routine is.
[42] Elly should, however, have the opportunity to have some extended summer time with her father. This was contemplated by the original order. She already has overnights. While generally a court will only make an interim order in a case involving a variation of a final order if there are exceptional circumstances, I see summer access as a very important issue in a little girl’s life. The order was made when Elly was only 16 months old. She is now nearly 3 ½. Although her parents have told me very little about her needs on the issue of summer access, I assume that like most 3 year olds she enjoys the summer, and enjoys time with both her parents.
[43] It is not clear to me from either the original order or the parties’ affidavits whether Elly’s summer access with her father has been overnight or not. From my reading of the order and mother’s proposal for summer access in her motion to change it appears that the extended summer access has been in lieu of Elly’s being in daycare, and is overnight only on father’s usual days. It seems to me that it would be in Elly’s interests to be able to spend extended summer holiday time with her father in Ottawa, at his townhouse there. I am not persuaded, however, that an equal sharing of the remainder of the summer would be appropriate as it would represent far too significant a departure from the current status quo.
[44] Father will therefore have two non-consecutive full weeks with Elly, each from Friday at 9:00 a.m. until the following Saturday at 6:00 p.m. He is free to travel with Elly to Ottawa. He is responsible for all her travel, including picking her up and returning her to her mother’s care. While Elly is with her father, father will ensure Elly has Skype communication with her mother on at least two occasions during the week. The parties will agree on the two Skype occasions. They will also agree on the two weeks father will spend with Elly.
[45] If the parties cannot agree, then father will choose the first week Elly will spend with him, and mother will choose the second week. Similarly, if the parties cannot agree on the Skype times, mother will chose the first day and time for each holiday week, and father will choose the second.
Costs thrown away
[46] The final order required the Registrar General to amend Elly’s birth registration to include the hyphenated surnames of both the parties. The order was dated June 30, 2011. Neither Maranger J’s formal order or his reasons contain any direction for the mother to do anything.
[47] Apparently, the parties had to take some steps in order to carry out this order. Father suggests mother was in contempt of the order when she failed to take any steps for a long period of time. Elly’s birth registration was only amended recently.
[48] First, I fail to see how mother can be in contempt of an order that does not require her to do anything.
[49] Second, the birth registration has now been amended. Nevertheless, after all the necessary paperwork had been completed and submitted to the Registrar General, father’s counsel drafted a contempt motion. He now claims as “costs thrown away” the costs he incurred in doing so.
[50] Father’s counsel says he drafted a motion for contempt so that mother’s counsel could not suggest there was no motion for which he could claim costs thrown away. Father and his counsel did so at their peril. First, as I have said, mother could not be in contempt of an order that did not require her to do anything. Second, by the time father’s counsel prepared the contempt motion, mother had taken the necessary steps to have the Registrar General amend Elly’s birth registration. Her surname is now Ryan-Scott. The order has been complied with, and on that basis as well there can be, and could have been, no contempt at the time the documents were drafted.
[51] There is no basis on which to award any costs thrown away to the father.
Disposition:
[52] For these reasons an order will issue in the following terms:
a) Jacqueline Vanbetlehem is ordered, pursuant to s. 30 of the CLRA, to assess and report to the court on the needs of the child Elly and the ability and willingness of the parties or any of them to satisfy the needs of the child;
b) The assessment process will begin in August, 2013, and the assessor will complete the process as quickly as is practicable. She will use her best efforts to have her report, or at least a preliminary report, available for the court for the settlement conference scheduled for October 23, 2013;
c) The parties will cooperate fully with the assessor;
d) The parties will share the cost of the assessment, subject to any reapportionment of the cost the trial judge might determine;
e) Father shall be responsible for all transportation for Elly’s time with him;
f) Elly will spend two non-consecutive full weeks with her father this summer. The weeks will run from 9:00 a.m. on a Friday until the following Saturday at 6:00 p.m. He is free to take Elly to Ottawa. He is responsible for all her travel, including picking her up and returning her to her mother’s care. While Elly is with her father, father will ensure Elly has Skype communication with her mother on at least two occasions during the week. The parties will agree on the two Skype occasions. They will also agree on the two weeks father will spend with Elly.
g) If the parties cannot agree, then father will choose the first week Elly will spend with him, and mother will choose the second week. Similarly, if the parties cannot agree on the Skype times, mother will choose the first day and time for each holiday week, and father will choose the second.
h) Father’s motion for costs thrown away is dismissed.
[53] Before they knew the outcome of this motion, the parties agreed that a reasonable costs order for this motion would be $7,500 all inclusive on a partial recovery basis if a party enjoyed complete success. Mother was successful on the issue of the assessment, transportation and costs thrown away. Father has enjoyed some success on the issue of summer access. In the circumstances here, I find it appropriate for father to pay mother’s costs of the motion, fixed at $6,500 all inclusive. Father will therefore pay mother’s costs of the motion, on a partial indemnity basis, fixed at $6,500 all inclusive.
MESBUR J.
Released: 20130712
[^1]: Elly’s full name is Elyse Ryan-Scott. They call her Elly.
[^2]: Paragraph 3 of the final order of Maranger J dated June 30, 2011
[^3]: Paragraph 4 of the final order of Maranger J dated June 30, 2011
[^4]: Linton v. Clarke (1994), 1994 ABCA 393, 10 R.F.L. (4th) 1 (Div.Ct.)
[^5]: Ursic v. Ursic, 2006 18349 (ON CA), 2006 CarswellOnt 3335 (O.C.A.)
[^6]: Glick v. Cale 2013 ONSC 893 (S.C.J.)
[^7]: See paragraphs 62 and 63 of father’s response to the motion to change, at page 16 of 18 of the response.
[^8]: See paragraph 41 of the father’s response to the motion to change.
[^9]: See for example, De Carlo v. Stewart 2011 CarswellOnt 12894 (S.C.J.); Stuyt v. Stuyt 2006 CarswellOnt 7783 (S.C.J.)