Court File and Parties

Citation: DIAB v. CARTWRIGHT, 2013 ONSC 5678

Court File No.: D13627/11

Date: 2013-09-09

Superior Court of Justice - Ontario

Re: Jean Diab, Applicant

And: Christine Claire Cartwright, Respondent

Before: The Honourable Mr. Justice D.A. Broad

Counsel: Lisa Kadoory, Counsel for the Applicant Lloyd St. Amand, Counsel for the Respondent Erik E. Grinbergs, Counsel for the Office of the Children’s Lawyer

Heard: September 3 and 4, 2013

Endorsement

[1] The applicant father has brought a motion to vary the terms of the Temporary Order of Justice Sloan dated April 13, 2012 (the “Sloan Order”), made on consent, respecting the primary care of the youngest child of the relationship, and the access arrangements for two older children. The respondent mother has brought a motion for an order that an assessment under s. 30 of the Children’s Law Reform Act be prepared.

Background

[2] The parties were married on October 6, 1990 and separated on December 25, 2011. They have four children together, Phoebe born March 25,1992, Chirho born June 3, 1997, Sophi born December 4, 1999 and Hakuin born May 22, 2005. Phoebe is 21 years of age and is not a subject of the Sloan Order. The Sloan Order provided that the applicant have the primary care of Chirho and Sophi and the respondent have primary care of Hakuin. The applicant was granted access to Hakuin from after school until the next morning before school once during each week and on alternate weekends from Friday after school until Sunday at 6 p.m. and the respondent was granted access to Sophi and Chirho once each week from after school until the next morning before school and on alternate weekends from Friday after school until Sunday at 6 p.m.

[3] Upon separation in late December 2011, the respondent left the matrimonial home with the youngest child Hakuin and moved to a women's shelter. Within days, the applicant brought a motion, on an urgent basis, for sole custody of the four children, limited access to the respondent and exclusive possession of the matrimonial home. The motion was brought first at Brampton, before Justice Arrell, who determined that it was not an urgent matter and he put it over to January 4, 2012, on which date Justice Taliano confirmed that ruling and directed that the matter proceed in the normal way, but requested the involvement of the Office of the Children's Lawyer. The OCL signified on February 13, 2012 that it would become involved and would appoint counsel with the assistance of a clinical investigator.

[4] On March 16, 2012, the parties executed a Consent which resulted in the Sloan Order. In addition to the primary care and access provisions of the Sloan Order, it also directed that the parties and the children engage in counselling.

[5] During the period prior to and after the making of the Sloan Order, the Children’s Aid Society (CAS) was involved with the family. During the turbulent events in the home in late December 2011, the Police Service became involved and they made referrals to the CAS. The CAS subsequently closed its file, but it was reopened in early May 2012 with a referral by the applicant. The CAS remains involved due to the risk of emotional harm to the children resulting from exposure to adult conflict.

[6] Prior to the appointment of Mr. Grinbergs as counsel for the OCL, the applicant proposed that the parties arrange for a s. 30 assessment as an alternative to proceeding with the involvement of the OCL, however the respondent declined, preferring to proceed with the OCL.

[7] The OCL commenced its work on May 8, 2012 with the involvement of John A. Butt, a Registered Marriage and Family Therapist, as the Clinical Investigator. An initial disclosure meeting was held on December 7, 2012

[8] Counselling with the counsellor named in the Sloan Order did not proceed, however the parties ultimately agreed to engage in family counselling with Mr. Paul Ricketts, a Registered Marriage, Family & Child Therapist in Hamilton, Ontario. This counselling commenced just prior to the initial OCL disclosure meeting in December 2012.

[9] At the first disclosure meeting, the Children’s Lawyer advised that he was not then ready to take a position with respect to custody and access, but proposed an interim position calling for the family to continue counselling with Mr. Ricketts, the parenting arrangement with Hakuin remaining unchanged and a variation to the parenting arrangement in respect of Chirho and Sophi whereby their overnight visits with the respondent would be suspended in favour of visits of six hours duration every Tuesday and on alternate Saturdays.

[10] The respondent did not accede to the proposal to suspend the overnight visits of Chirho and Sophi, however the counselling with Mr. Ricketts did continue. On April 4, 2013, Mr. Ricketts delivered a report to both counsel concluding that, despite his best efforts, he had been unable to improve the relationships between the respondent and Chirho and Sophi, and expressed the opinion that there was a poor prognosis for reconciliation and rehabilitation of those relationships. The involvement of Mr. Ricketts ended at that time.

[11] On April 30, 2013, a further disclosure meeting was held with the Children's Lawyer, at which time he put forward his position with respect to custody and access, namely that the applicant should have sole custody of the three children and should have their primary residence with him, with the respondent to have access to Hakuin once during the week and on alternating weekends, and to Chirho and Sophi once biweekly for six hours.

[12] Subsequent to the April 30, 2013 disclosure meeting, the Children's Lawyer modified its position. Mr. Butt swore a detailed affidavit dated July 8, 2013 in which he related his extensive interactions with the parties, the children, his observations of parent-child interactions and collateral information from third parties. He concluded his affidavit by stating the support of the OCL for the completion of a s. 30 assessment to ascertain the needs of the children and the ability of each parent to meet those needs, and proposing that, in the interim, Chirho and Sophi reside with the applicant and have one mid-week visit in addition to a visit on alternate weekends with the respondent, with such visits not involving an overnight stay, and that, pending the completion of the assessment, the status quo in relation to Hakuin’s residential and visitation arrangements remain unchanged. The OCL also proposes that any subsequent changes to the custody and access arrangements for the children take into consideration the outcome of a s. 30 assessment.

[13] The affidavit material filed by the parties on these motions is extensive, with the narratives of the pre-separation and post-separation conduct of the parties and their respective interactions with the children complex and conflicting. The parties each make a multitude of inflammatory accusations against the other, each blaming the other for the dysfunction in the family relationships which culminated in the events surrounding Christmas 2011 and the separation. The applicant described the respondent’s pre-separation behaviour as being replete with mood swings, erratic behaviour and vicious outbursts, during which she would break out into fits of uncontrollable rage resulting, on occasion, in violent and physically aggressive behaviour. He alleges she ripped his clothing, slapped his head, kicked him, locked them out of the matrimonial home, dumped piles of documents from his office, broke the printer and fax machine he uses for work, broke his glasses, threw orange juice in his face and spit at him. He says that on many occasions this behaviour was witnessed by the children and caused them serious distress.

[14] For her part, the respondent denied the applicant’s allegations respecting her behaviour and alleged that it was the applicant who engaged in yelling and berating her in the presence of the children, resulting in her feeling very threatened. She says he continually put her down in front of the children and would scream at her uncontrollably at the most minor incidents. She said that the applicant's behaviour escalated and became more aggressive and more threatening in the latter part of 2011, culminating in the events of late December.

[15] Each of the parties seek, in their respective affidavits, to cast the other in the worst possible light and to place themselves in the best possible light, each assuming the role of the blameless victim. There is virtually no acceptance by either party of any responsibility for the difficulties and dysfunction of their relationship and the effect that it had on the well-being of the children. Each of them places the responsibility for the problems in the family at the feet of the other.

[16] As indicated, the affidavit material is extensive and almost entirely conflicting. Included in the applicant's material is an affidavit of the parties’ eldest child, Phoebe, who is 21 years of age and in fourth year at Queen's University. She describes at length, among other things, the very strained relationship she has with her mother and the reasons for it from her perspective.

[17] At the outset of the hearing, an objection was made by the applicant to the late filing by the respondent of certain affidavit material. The material in issue consisted of five affidavits sworn August 27, 2013 by the respondent, Krista Appleby, Sheila Cartwright, Heather Corbett Tuttle and Cyndi Devereux. The parties agreed that paragraphs 1 through 30 of the respondent's affidavit be admitted, and that paragraphs 31 and following should be excluded. The respondent agreed that the affidavits of Ms. Tuttle and Ms. Devereux should be excluded. I reserved my decision on the question of the admissibility of the affidavits of Krista Appleby and Sheila Cartwright. I find that the affidavits in question should not be admitted, having been served on the eve of the argument of the motions and following delivery of the balance of the affidavit material for argument on the original scheduled date of July 25, 2013 (when the presiding judge could not proceed, having conducted a case conference on the matter). In any event, for the reasons set forth below, I would ascribe very little weight to the affidavits in the circumstances.

[18] With the greatest of respect to the non-professional third parties who provided affidavits attesting to their strongly and sincerely held beliefs, opinions and information in support of one or the other of the parties, their affidavits are not particularly helpful for the determination of the issues before the court on the motions, namely whether a s. 30 assessment should be ordered and whether the parenting arrangements consented to earlier by the parties, and set forth in the Sloan Order, should be varied pending trial.

[19] In spite of the conflicting affidavit material, what is clear is that the relationships between Chirho and Sophi and their mother are strained to the point of being effectively non-existent at the present time. Chirho, has, since May 22, 2013, stopped staying at the respondent’s residence for the full duration of his scheduled access visits, returning to the applicant’s home after short attendances at the respondent’s home of varying duration. In her latest interview with Mr. Butt on July 15, 2013, Sophi has also enquired as to whether she would be allowed to leave as Chirho was doing, and further advised that she was thinking of doing so, regardless of the ramifications.

[20] Mr. Butt reported on observed interactions between all three children with the respondent in the home setting in September, 2012 during which both Chirho and Sophi each refused to communicate with their mother, responding to her attempts to engage them with occasional grunts or one-word answers.

[21] The respondent’s relationship with Hakuin is more positive; however, it has seen some recent deterioration as well. Mr. Butt, in his affidavit, reported that, in his most recent interview with Hakuin on July 15, 2013, Hakuin indicated that, although he had, in the past, wanted to live with his mother but visit his father more, he has changed his mind and he now wishes to live with his father and visit his mother. He stated that he changed his mind because there continues to be fights at his mother's home, between his mother and Chiro and Sophi and sometimes between him and his grandmother and aunt. He nevertheless said that it was "good" at his mother's and he still wanted to be able to visit her.

[22] The respondent, while acknowledging that Chirho and Sophi have become very sullen, withdrawn and unresponsive to her, maintains that that there is nothing whatsoever pertaining to her parenting of the children, prior to or subsequent to the separation, which can account for the negative views which Phoebe, Chirho and Sophi now have towards her. She is concerned that their true feelings towards her are being suppressed, due to their unwillingness to disobey or challenge their father. She stated her belief that the children are fearful of the applicant and have sided with him in the proceeding for fear of what he would do to retaliate. She states her concerns that, in the event that Hakuin is allowed to spend more time with the applicant, he and the older children will "work on him" with the result that he will become as alienated from her as the older children. She states that she has been concerned, for a lengthy period of time, that the applicant has deliberately alienated the children from her. She alleges that the children's behaviour towards her, and in particular the three older children, is inconsistent with the behaviour which they demonstrated towards her prior to the separation.

[23] For his part, the applicant maintains that he has done nothing to attempt to alienate the children from the respondent but rather his behaviour and actions have been the antithesis of those of an alienating parent. He points to his having spearheaded and pushed for family systems-based therapy post-separation, initiating one-on-one counselling with Mr. Ricketts to improve his communication with the respondent and to receive guidance on how best to address the children's upset with their mother, and to his attempts to deliver a consistent message to the children about the importance of fostering a relationship with their mother notwithstanding their feelings of anger and frustration towards her. The applicant vehemently denies that this is a case of parental alienation, but rather the children’s attitude toward the respondent is best characterized as realistic estrangement.

Analysis

[24] Section 30(1) of the Children’s Law Reform Act provides as follows:

The court before which an application is brought in respect of custody of or access to a child, by order, 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.

[25] In the case of Baillie v. Middleton 2012 ONSC 3728 (SCJ), Justice Pazaratz observed that there were two lines in the case law, with one line favouring a liberal application of the provision, ordering assessments whenever it is "in the best interest of the child" and largely in the hope that early intervention by "an expert" may resolve the dispute, or at least provide additional insight for the judge (see para. 17).

[26] Justice Pazaratz stated his preference for the line of cases which followed Linton v. Clarke (1994) 1994 CanLII 8894 (ON SCDC), 10 R.F.L. (4th) 92 (Ont. Div. Ct.) which emphasized the specific and narrow purpose of s. 30 assessments (see para. 18). He pointed out that 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 (see para. 23). Justice Pazaratz undertook an exhaustive review of the case-law, concluding that the party seeking the assessment in that case had failed to establish that one should be ordered as there were no clinical issues present.

[27] More recently, the question of the circumstances under which a s. 30 assessment should be ordered was considered at length by Justice Kiteley in the case of Glick v. Cale 2013 ONSC 893 (SCJ). Justice Kiteley, after reviewing the case law at length, including Baillie, reached the conclusion that a "clinical issue" is not required before an order for an assessment is made (see paras. 41-46). At para. 48 she offered a non-exhaustive list of criteria to assist a judge in deciding whether to order an assessment, as follows:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child's needs (including education, religion, health and activities) without intervention by a court?

(c) Without defining "high conflict", is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent's ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of the delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

[28] Justice Kiteley’s conclusion that a clinical issue is not required and her identification of criteria to be considered by the court on the question of whether a s. 30 assessment should be ordered was approved and adopted by Justice Mesbur in the very recent case of Ryan v. Scott 2013 ONSC 4759 (SCJ).

[29] Justice Kiteley, in Glick, characterized her list of criteria as non-exhaustive. In my view, not all of the listed criteria will be relevant in every case and there may very well be other additional factors which will be relevant in some cases.

[30] In the present case, the key factor is that the relationship between the parents is so unhealthy and poisoned that one or both parents is/are unable to identify the best interest of the children and to act on it. Both parties have a mutual disregard for the other's ability to parent appropriately, and they blame each other, without accepting any responsibility themselves, for the dysfunction which each of them describes. Each of the children are manifesting behaviour that might be associated with stress caused by the conflict between the parents.

[31] Although in some cases it might be considered more appropriate, as an alternative to a s. 30 assessment, to ask the OCL to become involved and to appoint a lawyer to act for the children, in this case the OCL has had extensive involvement, including through the services of a clinical investigator, Mr. Butt, who carried out an intensive and time-consuming investigation and notwithstanding that, the OCL has nevertheless recommended that a s. 30 assessment be undertaken.

[32] There do not appear to be other challenges in the family which, if resolved, will lead to improvement in the family dynamic. There is no indication in the evidence that the parties lack the financial resources to meet the cost of having an assessment is carried out. Indeed, although the respondent submits that the applicant, who has an income, should pay for the cost of the assessment, she is prepared to contribute one half of the cost, if necessary, if that would otherwise be an impediment to an assessment being ordered.

[33] The applicant advanced two primary arguments in support of his submission that an assessment should not be ordered. The first was that the children have been "poked and prodded" enough through their involvement with various professionals subsequent to the separation including the family counsellor Mr. Ricketts and the OCL clinical investigator, Mr. Butt, representatives of the CAS and others and it is not in their best interests to be forced to deal with further professional clinical involvement. Secondly, the applicant argued that ordering a s. 30 assessment would result in undue delay which would also not be in the children’s best interests.

[34] On the question of additional professional intervention, there is no support in the evidence for the suggestion that the involvement of a s. 30 assessor would have a detrimental effect on the children's best interests. Indeed, Mr. Butt recommended that a s. 30 assessment be undertaken and did not raise any red flags in his lengthy affidavit concerning any detrimental impact that it may have on the children.

[35] On the question of delay, Justice Kiteley posed the question as follows: “in considering the impact of delay, is it more likely than not that the delay necessarily involved in the assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?” In my view, the answer is yes. Based upon the starkly conflicting affidavit evidence, it is hard to imagine parents having a worse understanding of the family dynamic, as it impacts on the children, than exists in the present case.

[36] Counsel for the applicant submitted that the assessment would take 10 to 12 months, and pointed to the length of the involvement of the OCL before the disclosure of its review was completed. In contrast, counsel for the respondent and for the OCL were both of the view that an assessment could be undertaken and completed within 4 to 6 months.

[37] Counsel for the applicant acknowledged in argument that there are clinical issues in the present case, within the definition adopted by Justice Pazaratz in Baillie, at para. 24, as "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.”

[38] In Ryan v. Scott, at para. 27, Justice Mesbur observed in reference to the facts of that case: “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.”

[39] Similarly in the present case, the applicant suggests that the respondent suffers from mental health issues and the respondent alleges that the applicant has engaged in behaviour that is consistent with "parental alienation." I am not in a position to make a determination of either of these allegations based on the current record, but like the situation in Ryan v. Scott, they are, in my view, issues which warrant an assessment.

[40] Based upon the evidence, the appointment of the person with technical or professional skill to assess and report to the court on the needs of the children and the ability and willingness of the parties or either of them to satisfy the needs of the children is warranted. In spite of the necessary delay that would be occasioned by the assessment, an assessment would be in the best interests of the children and would also be beneficial to the trial judge. It also has the real potential to be beneficial to the parties in better understanding the family dynamic in arriving at a resolution of the issues of custody and access between them without a trial.

[41] I am of the view that it would be premature and potentially prejudicial to make any change to the primary residence and access arrangements in respect of Hakuin pending completion of an assessment. Given the ages of Chirho and Sophi and their current hardened attitude towards their mother, I agree with the recommendation of the OCL that overnight stays for them with the respondent be suspended pending the completion of the assessment.

[42] The claim of the respondent that the applicant surrender the passports of the children into the care of the respondent or the respondent's counsel was not pursued in argument. In any event, I would not make such an order as it is not warranted by the evidence. The provision at para. 9 of the Sloan Order that none of the three minor children shall be removed from the Province of Ontario is sufficient in the circumstances.

[43] It is therefore ordered as follows:

(a) an assessment of the needs of the children Mikhael Soren Chirho Diab, born June 3, 1997, Sophiana Magdalene Siegen Diab, born December 4, 1999, and John Michael Hakuin Diab, born May 22, 2005, be conducted;

(b) the assessment shall be completed within five months of commencement of the assessment;

(c) the cost of the assessment shall be shared equally by the parties, without prejudice to their respective positions at trial;

(d) the parties may have 30 days from the date of release of these Reasons to agree upon the identity of the assessor, the costs of the assessment, the commencement date of the assessment and other necessary arrangements for the assessment, failing which either party may make an appointment, through the Trial Coordinator at Brantford, to appear before me, either personally or by teleconference, to choose and appoint the assessor;

(e) the Temporary Order of the Honourable Justice Sloan dated April 13, 2012 shall be changed by deleting subparagraph 7(b) thereof and substituting the following:

“7(b) The Respondent shall have access to Sophi and Chirho every Tuesday from after school (or 3:30 p.m.) to 9:30 p.m. and on the Saturday of alternate weekends, being weekends that Hakuin is with the Respondent, from 9:00 a.m. to 6:00 p.m.”

[44] If the parties are unable to agree on costs, they may file written submissions of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 30 days. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor Kitchener, Ontario N2H 0A7. If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves.

D. A. Broad J.

Date: September 9, 2013