ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-384850
DATE: 20130903
BETWEEN:
Eugeny Svirsky
Applicant
– and –
Elizabeth Svirsky
Respondent
Brian J. Burke, for the Applicant
Gordon Meiklejohn, for the Respondent
HEARD: August 29, 2013
Kiteley J.
[1] The Applicant was born in the Ukraine. The Respondent was born in Russia. They were married in 1999. There are three children of the relationship: Katherina (who is almost 19 years old); Maria (who is almost 16 years old) and Sophia (who is 12.5 years old).
[2] The Applicant takes the position that the Respondent abducted the children from Kiev in November 2012 when she refused to return Maria and Sophia to the Ukraine following a two week vacation to Toronto. The Respondent denies that she abducted the children. Both Applicant and Respondent have provided considerable evidence about the history of the relationship including the locations where some or all of them resided, none of which is relevant to the motions before me.
[3] In January, 2013 the Applicant caused to be issued an application in which he sought a declaration pursuant to s. 40 of the Children’s Law Reform Act that the children are being wrongfully retained in Ontario; he also sought an order for the immediate and summary return of the children to their habitual residence, namely Kiev, Ukraine as well as a declaration that Ontario does not have jurisdiction to deal with custody of the children. This is not a Hague Convention case because the Ukraine is not a signatory.
[4] In her Answer in February, 2013, the Respondent denied that she had abducted the two younger children and asked for relief pursuant to the Divorce Act, the Family Law Act and the Children’s Law Reform Act.
[5] A case conference was held on May 6, 2013.
[6] A motion was brought on behalf of the Respondent returnable July 16, 2013 for leave to amend the Answer, and for an order for interim custody, interim support, payment of an advance on the equalization payment and other relief. There is no endorsement dealing with any of that relief. The Answer has not been formally amended.
[7] A motion was brought on behalf of the Applicant returnable July 18, 2013 in which he sought the following: a declaration pursuant to s. 40 of the Children’s Law Reform Act that the younger children are being wrongfully retained in Ontario; an order for the immediate return of the children to Kiev; a declaration that Ontario does not have jurisdiction to deal with the Respondent’s application and an order that the Respondent’s application and all of her claims be stayed pursuant to s. 106 of the Courts of Justice Act; a declaration that Ontario does not have jurisdiction to adjudicate the Respondent’s application; in the alternative, an order that the Respondent’s claims be stayed on the basis of forum non conveniens; in the further alternative, an order for the immediate trial of the issue as to the children’s immediate return and the jurisdiction of the Ontario Court in this matter; and in the further alternative, an order setting a date for an immediate full day motion to determine the issues of jurisdiction and return of the children; an order that Diane Moody immediately provide to counsel for both parties a copy of her complete file relating to the children and the Respondent; an order appointing Dr. Ted Horowitz or Shely Polak to interview the children and to report to the parties and the court on specified information; an order that the costs of such an inquiry be shared equally, subject to possible reapportionment by the court; and order that the Applicant have specified parenting time.
[8] On July 25, 2013, Croll J. made the following endorsement:
Order to go in terms of consent filed and attached.
There shall be a trial of an issue on October 21/13 (4.5 days) to determine all the jurisdiction issues in this case, including the Applicant Father’s section 40 CLRA return motion and his motion for a stay and jurisdiction relating to the Respondent Mother’s claims for divorce, custody, support, division of property and costs.
Counsel for Applicant Father sought an earlier trial date, however, this is the date both counsel and court are available. Trial date sought by Applicant father. Respondent Mother did not consent.
TMC set for Oct 9/13 at 10:00, Applicant Father can participate by telephone if he is not in country.
[9] The consent signed by counsel contains the following:
The parties will retain a parenting professional to meet with the children, Maria and Sophia and to report to the parties and the court on the children’s views and preferences regarding their residential arrangements for the trial of the issue.
The parties will agree on the parenting professional to be retained pursuant to paragraph 1 above within 5 days. If they cannot agree, either party may bring a motion in August 2013 to resolve the issue.
The parenting professional’s mandate pursuant to paragraph 1 above is without prejudice to the Father’s ability to seek an expansion of the parenting professionals’ mandate by way of a motion for directions.
[10] I note that at the end of the first paragraph of the consent, the following words were written and crossed out: “The costs will be shared equally.” It appears that there is no agreement or order as to payment for the parenting professional.
[11] In a motion returnable August 15, 2013, the Applicant again sought the contents of Diane Moody’s file relating to the children and the Respondent.
[12] As indicated in the endorsement dated July 25th, if the parties were unable to agree on the parenting professional, a motion could be brought. The parties were unable to agree. In a motion returnable August 22, 2013, the Applicant sought the appointment of Dr. Horowitz or Shely Polak to interview the children and to report to the parties and the Court on the children’s views and preferences regarding their residential arrangements for the trial of the issue scheduled to commence October 21st.
[13] On August 19th, the Respondent changed solicitors to Mr. Meiklejohn.
[14] In a motion returnable August 29, the Respondent asked for the following: an order appointing Diane Moody, or in the alternative, Joanne Seidel, to interview the children and to report to the parties and the Court on the children’s views and preferences regarding their residential arrangements for the trial of the issue scheduled to commence October 21, 2013; an order directing Diane Moody to provide to the parties and to the Court at the trial of the issue her notes of her meetings with the children; and an order approving service of the Answer, Respondent’s Financial Statement sworn February 26, 2013 and Form 35.1 Affidavit on the Applicant effective February 26, 2013, the date those documents were delivered to Mr. Burke.
Issue #1: Diane Moody’s file
[15] In her affidavit sworn August 26th, the Respondent said that in November 2012, she arranged for the two younger children “to see Ms. Moody so as to assist them in dealing with our family issues arising from my separation from the Applicant”. The Respondent said that initially Ms. Moody met with her and then she met with the children and then met with the children and the Respondent. Ms. Moody met with the children several times, most recently July 16th.
[16] The Respondent does not oppose the notes with respect to the children being disclosed to the Applicant at this time, “provided that if they are relevant they are made available to the presiding Judge at the hearing in October”.
[17] The Respondent objects to production of the contents of the file relating to interviews that she had with Ms. Moody because they are confidential and are not necessary for the Applicant to carry on the case. She said that when she met with Ms. Moody, she understood that anything she said to her as her counselor would be kept confidential and would not be disclosed to anyone.
[18] There appears to be no real issue about Ms. Moody’s notes vis-à-vis the children. Whether they are made available to the presiding Judge at the hearing in October is up to counsel.
[19] I am not persuaded that the notes vis-à-vis the Respondent are confidential. As indicated above, the Respondent took the children to Ms. Moody to help them deal with the separation of their parents. Ms. Moody had at least one meeting involving both the two younger girls and the Respondent. I expect that it would be a challenge for her to excise the notes vis-à-vis the Respondent and still have notes that a reader could understand. If a party asserts confidentiality, there must be more evidence than simply an “understanding”. Furthermore, Ms. Moody was not her counselor which means there is no privilege between Ms. Moody and the Respondent.
Issue #2: Who will prepare The Voice of the Child Report?
[20] Attached to his factum, Mr. Burke provided an excerpt from the Guidelines for Social Work Members of the Ontario College of Social Workers and Social Service Workers that described in detail the expectations with respect to Custody and Access Assessments. However, neither counsel provided a description of the Voice of the Child Report. The parties agreed on July 25th that it would be prepared. In order to properly identify who will be appointed to prepare the report, a description of what steps are undertaken should be required. I have only the Children’s Wishes Retainer Agreement from one of the proposed professionals which indicates that she would interview the children and the parents individually and together as she deems necessary. Since there is already a consent order for such a report, I will overlook the absence of evidence as to the expectations vis-à-vis the process and the outcomes.
[21] Pursuant to s. 30 of the Children’s Law Reform Act, the court 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. There is no statutory authority to appoint a person to prepare a Voice of the Child Report. Since the order made on July 25th indicated that upon a failure to agree, either party might bring a motion, I will overlook that statutory lacuna in this case.
[22] As indicated above, each party suggested certain professionals. By the time of the motion, the options were as follows:
(a) Proposed by Mr. Burke: Shely Polak and Jacqueline Vanbetlehem;
(b) Proposed by Mr. Meiklejohn: Diane Moody and Joanna Seidel.
[23] In his submissions, Mr. Burke’s first choice was Ms. Vanbetlehem. Her curriculum vitae indicates that she received her Masters of Social Policy in 1994 and has had extensive clinical experience since 1991. The services she provides include mediation/arbitration, therapy, parenting co-ordination and expert opinion reports on child alienation. She lists custody and access assessments, psychosocial assessments and critiques of assessments. Her c.v. lists numerous presentations, workshops and publications. Mr. Burke acknowledged that last year he participated in a professional presentation with her and he is currently on a committee with her. Mr. Meiklejohn does not challenge Ms. Vanbetlehem’s professional qualifications except to observe that her expertise is in alienation issues. He does take the position that the professional involvements shared by Mr. Burke and Ms. Vanbetlehem should disqualify her.
[24] Shely Polak’s curriculum vitae indicates that she completed her MSW in 2010 and expects to complete her Ph.D. in Social Work in 2015. She is employed at a clinic where she does s. 30 assessments, family mediation and parenting coordination and therapy. She makes no mention of Voice of the Child Reports. She has had extensive research experience and has listed her publications, presentations and awards. Mr. Meiklejohn did not challenge her professional qualifications except to observe that she is less experienced than Ms. Seidel.
[25] Ms. Moody’s curriculum vitae demonstrates that she has extensive experience in dealing with children in a variety of professional settings. She does not list assessments or Voice of the Child Reports in her c.v. Mr. Burke does not challenge her professional qualifications. He objects because of her prior involvement with the girls and with the Respondent and as a result he argues that she will not bring the element of independence that is required.
[26] Joanna Seidel’s curriculum vitae indicates that she received her MSW in 2006. Her professional experience includes individual, child and family therapist. In her private practice since 2006, she has provided assessment, consultation and counseling; coordinated and facilitated supervised access; treatment to children, youth and adolescents; voluntary and court mandated counseling and assessment services to adults and youth facing criminal charges; provided specialized assessments including child interviews, attachment assessments, anger assessments and biopsychosocial assessments; created parenting plans; and presented workshops. Her c.v. does not specifically mention Voice of the Child Reports.
[27] I am not persuaded that Ms. Moody will be an appropriate choice. I agree that because of her pre-existing relationship with the children, that she ought not to participate. I am persuaded that I must exclude Ms. Vanbetlehem because of the professional involvement with Mr. Burke. I am very reluctant to do so because it suggests that a lawyer would be precluded from working in professional organizations with a parenting professional and then proposing that person in a specific case. That would discourage inter-professional collaboration which is critical in family law matters. In most cases, such collaboration would not provoke opposition. It has in this case. Given the time constraints in this case, I will eliminate it as a focus of concern. In future however, additional evidence about the professional relationship would be desirable in order to assess whether the objection is reasonable.
[28] That leaves one choice from each counsel: Shely Polak and Joanna Seidel. I am impressed with Ms. Polak’s resume and particularly her research. However, I am persuaded that Joanna Seidel would be appropriate because she has more years of experience than does Ms. Polak. Ms. Seidel has provided her written consent.
[29] I note that not all of the proposed professionals have consented in writing to prepare the Voice of the Child Report which is mandatory when the court appointments an assessor for a s. 30 assessment. However I overlook that in this case because I accept that their names would not be put forward unless each was able to undertake the work with the known trial date.
Issue #3 Service of responding documents
[30] As indicated above, the Answer, Financial Statement and s. 35.1 affidavits were delivered to Mr. Burke on February 26th. Mr. Meiklejohn asks that I make an order that service was effective that date and that the Applicant has 10 days within which to file a Reply and related documents.
[31] Mr. Burke objects. He takes the position that he acts for the Applicant in connection with the Application but he is only “agent” in connection with the Respondent’s Answer and related documents. He advised that he had made that distinction clear at the case conference in May.
[32] I do not agree that Mr. Burke can bifurcate his responsibilities. He is counsel of record on the Application. That document required a response. Simply because the Answer also contains a request for relief does not mean that it cannot be served on counsel of record for the Applicant. Furthermore, the trial of the issue includes the jurisdiction of this court over the Respondent’s claims for divorce, custody, support, division of property and costs. The trial can only be held if there are such claims before the court. It is not logical for the Applicant to now say that he has not been served with the document that asserts the claims that he will ask be stayed.
[33] Mr. Burke also took the position that his client cannot deliver a Reply (and associated documents) until the jurisdiction motion is determined. He argued that if service had been effected, his client would be forced to attorn to the jurisdiction of Ontario which would undermine his position on the trial of the issue that Ontario does not have jurisdiction. The issue of attornment is relevant to how the Applicant responds. It is not relevant to whether service has been effected.
[34] While the documents were served on February 26th, this issue of effective service has not been resolved until now. I assume that between change of counsel and other priorities, it was left aside. However, the claims asserted by the Respondent have been known since February 26th. I agree with Mr. Meiklejohn that the Applicant should be required to respond within 10 days. As indicated below, to take into account the issue of attornment, I am directing the Applicant to respond within 10 days without directing him to file a Reply.
Where do we go from here
[35] Because of the haste with which this matter has proceeded, there are issues that counsel will have to address. The first is that there is no agreement or order as to the costs of the Voice of the Child Report. The second is that there is an outstanding motion to amend the Answer. The third is the issue of attornment to which reference has been made above. I am optimistic that with the imminent trial date, counsel will find solutions to all of these issues.
[36] The fourth is the scope of the trial. The endorsement made by Croll J. makes it clear that it is on the issue of the jurisdiction of the Ontario Superior Court. However, the consent attached to the endorsement indicates that the report on the children’s views and preferences regarding their residential arrangements will be available for the trial. The Application was brought pursuant to s. 40 of the Children’s Law Reform Act. That engages s. 22, s. 25 and s. 42. S. 40 provides that the court may make such interim order in respect of custody or access as the court considers is in the best interests of the child. That engages s. 24(2) which enumerates some of the relevant considerations in establishing the best interests of the child including the child’s views and preferences. I refer to these parts of the Children’s Law Reform Act not with a view to articulating the principles that apply but to point out that it is essential that counsel turn their minds to their collective expectations as to the scope of the trial. The trial date was set at the earliest possible date but for only 4.5 days. If the length of the trial is appreciably greater, it may be that the trial cannot be accommodated. Notwithstanding the positions their clients take, I strongly encourage counsel to immediately collaborate to identify the witnesses likely to be called, the duration of the evidence, and the development of an extensive agreed statement of facts that would address the historical movements of the family and the proceedings in the Ukraine.
[37] That leaves the question of costs of these motions. Counsel have so many immediate issues to address that I am optimistic that they will agree on the issue of costs of the motions.
ORDER TO GO AS FOLLOWS:
[38] Within 10 business days of receipt of a copy of this endorsement, Diane Moody shall provide to each counsel a photocopy of the entire contents of her file, provided that each counsel shall pay whatever photocopying charges claimed by Ms. Moody.
[39] Mr. Burke shall ensure that a copy of this endorsement is provided to Diane Moody.
[40] Joanne Seidel is appointed to prepare a Voice of the Child Report, which shall be available no later than October 4, 2013, which is the Friday preceding the Trial Management Conference scheduled for October 9th.
[41] The Answer, Financial Statement and Form 35.1 affidavit were served on February 26, 2103 by delivery to Mr. Burke, the Applicant’s solicitor of record. The Respondent has 10 days from the date of this endorsement to respond.
[42] If by September 10th counsel have not agreed as to costs of these motions, then by September 17th Mr. Burke will make written submissions not exceeding 3 pages plus costs outline; and by September 24th, Mr. Meiklejohn will make written submissions not exceeding 3 pages plus costs outline.
Kiteley J.
Released: September 3, 2013
COURT FILE NO.: FS – 13- 384850
DATE: 20130903
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eugeny Svirsky
Applicant
AND
Elizabeth Svirsky
Respondent
REASONS FOR JUDGMENT
Kiteley J.
Released: September 3, 2013