COURT FILE NO.: FC-14-44961-00

DATE: 20151119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yakov Eitan Berman, Applicant

AND:

Alissia Berman, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Philip Viater, for the Applicant

Dani Z. Frodis, for the Respondent

HEARD: November 9, 2015

ENDORSEMENT

[1] This motion is brought by the applicant father for an order “reappointing” Howard Hurwitz to conduct a follow up section 30 Children’s Law Reform Act (CLRA) assessment for the child of the marriage, and an order that both parents share the costs of this assessment 50% each.

[2] For the reasons set out below, the father’s motion is dismissed.

Background Facts

[3] The parties commenced cohabitation in 2009 and married on July 31, 2011. Their only child, a daughter, was born on February 7, 2013.

[4] The parties separated in December 2013. At the time of the separation the parties lived in Maple, Ontario. The mother took the daughter to Amherstberg, Ontario to visit the mother’s parents for the holidays and advised the father in a text message that she would not be returning.

[5] The father brought an urgent motion without notice to the mother on January 10, 2014, and the mother was ordered to return to York Region. The matter returned to court for a case conference on January 31, 2014, and the parties agreed to retain an assessor to complete a section 30 CLRA assessment for the purpose of providing guidance regarding an appropriate parenting schedule and to make recommendations on whether the mother should be permitted to move with the daughter to Amherstberg. Howard Hurwitz, a registered social worker, was retained by the parties as the assessor.

[6] For ease of reference s. 30 of the CLRA provides as follows:

30. (1) 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.

(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application.

(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person.

(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.

(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order.

(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate.

(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court.

(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child.

(9) The report mentioned in subsection (7) is admissible in evidence in the application.

(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application.

(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate.

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1).

(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay.

(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party.

[7] On June 24, 2014, the parties and their respective counsel met with Mr. Hurwitz, who provided the parties with a draft report. This draft report included a “Recommended Parenting Plan” as follows:

A. It is recommended that Alissia Berman not move to Amherstberg, since this is not deemed to be in the best interests of Eliana.

B. That Ms. Berman obtains individual counselling with a therapist skilled in working with high conflict families. The focus of the counselling should be on developing insight around the ending of the marriage and to develop strategies around communicating with Mr. Berman.

C. Mr. Berman should obtain individual counselling around ways to disengage from Ms. Berman now that the marriage has ended.

D. Mr. Berman should attend a parenting course similar to the Triple P program that offers an 8 week session on developing parenting skills.

[8] The draft report recommends that the daughter’s principle residence be with her mother, and sets out a progressive four phase access schedule over three years for the father, commencing in June 2014:

(a) Phase I proposed three days a week for three hours per day and Saturdays from 10:00 a.m. to 6:00 p.m. for one month;

(b) Phase II (July 29, 2014 to January 2015) proposed that the child would reside with the father three days per week and Fridays at 5:00 p.m. to Saturdays at 6:00 p.m.;

(c) Phase III (January 2015 – February 2017) would have the child reside with the father overnights Monday and Wednesday and alternate weekends Friday to Saturday at 6:00 p.m.; and,

(d) Phase IV, commencing February 2017, recommended alternate weekends from Friday after school until Sunday night, and Thursday to Friday and Monday to Tuesday on weekends when the child is with her mother.

[9] Mr. Hurwitz is a social worker, not a psychologist. Accordingly, the parties were referred to Dr Olga Henderson who prepared psychological reports in relation to each of the parties. These reports were relied upon by Mr. Hurwitz in has assessment.

[10] On July 23, 2014, Justice Rogers issued an order which provided that primary residence of the child is with the mother and granted the father access as follows:

(a) each Monday and Wednesday from pick up at day care at 4:00 p.m. to 7:00 p.m., commencing July 28, 2014;

(b) alternate Fridays from pick up at day care at 4:00 p.m. to Saturday at 7:00 p.m. and Sunday of the same alternate weekend from 10:00 a.m. to 5:00 p.m. commencing August 1, 2014; and,

(c) alternate Fridays from pick up at 5:00 p.m. to Sunday at 5:00 p.m. commencing October 2014.

[11] As can be seen, the schedule ordered by Justice Rogers in July 2014 is somewhat accelerated as compared to the three year plan proposed by Mr. Hurwitz in his draft report the month before. With regard to the commencement of overnight access, however, the two schedules are identical; under both schedules overnight access would begin on Friday August 1, 2014.

Position of the Parties

[12] The father requests an updated report from Mr. Hurwitz because the June 2014 report was based on the limited information Mr. Hurwitz had available at that time. Since the draft report was written, the father has had the benefit of extensive access to his daughter as a result of Justice Rogers’ order. The father argues that Mr. Hurwitz should have an opportunity to update his report based on the father and daughter’s actual experiences during the more than one year of access that has transpired since preparation of the June 2014 draft report.

[13] Mr. Hurwitz has indicated his willingness to do an updated assessment. On July 7, 2015, he advised counsel for both parties that,

…if there have been developments [since the original assessment last year] it would be useful to have an updated assessment… It is often customary in an assessment that there be a recommendation to do an update if there is a sense that there may be or have been significant developments likely to occur.

He indicated that he did not know whether there had been significant developments in this case. He estimated that the cost of the updated assessment would be $10,000 and it could take four months to complete.

[14] The mother opposes the reappointment of Mr. Hurwitz for several reasons. Her first reason is that she no longer has confidence in Mr. Hurwitz as the appropriate person to do the assessment. This is, in part, due to her disagreement with his recommendations in his draft report, but also relates to the content of much of the report, which her counsel describes as “boiler plate” analysis that could apply to any separated couple and did not, the mother believes, take into account her particular circumstances such as her work schedule. The mother has set out her concerns in detail in her affidavit and she takes the position that if an updated assessment is performed it should be by a person agreed to by both parties.

[15] A second objection is the projected cost of the update. The original assessment cost approximately $25,000. The mother takes the position that she cannot afford her share of the additional $10,000 estimated for the updated assessment. She has set out her financial position in her affidavit and there is compelling evidence that she cannot afford this additional expense. The cost of this litigation has been draining and this additional cost would add to her financial hardship.

[16] Finally, the mother takes the position that many of the reasons for the father’s request for a reassessment are unsupported or irrelevant. For example, the father states in his affidavit,

…a big reason why this report needs to be updated is because I believe that Mr. Hurwitz will also change his recommendation now that he is able to see what has transpired. I believe that Mr. Hurwitz would give me even more access time than he has recommended now that he sees how well Eliana is doing in my care and also how much I have developed as a parent.

[17] The mother argues that the father’s belief in this regard appears to be entirely speculative. There is no indication in Mr. Hurwitz’s letter of July 7 to counsel that his June 2014 recommendations were subject to revision based on the success of overnight access or the father’s development as a parent. To the contrary, Mr. Hurwitz’s recommendations appear to be premised on the assumption that the overnight access with the father would be successful and he built in a graduated access schedule based on this presumed success.

[18] Another example is paragraph 71 of the father’s affidavit, where he states,

Mr. Hurwitz needs to be aware of the consistent games that [the mother] plays in court. For example, when I see Alissia during an access exchange, she looks fantastic… However, when she comes to court, she comes dressed down, with bad makeup, raccoon eyes and generally tries to present herself as a poor victim. Mr. Hurwitz needs to see that this is continuing.

[19] Mr. Hurwitz is a social worker. He was appointed to assess the parties parenting abilities, not their courtroom demeanour, dress or makeup. It is not within his area of expertise to assess whether someone is “playing games” in court. Nor, to his credit, did Mr. Hurwitz attempt to do so in his report. If this is one of the reasons that the father is seeking to reappoint Mr. Hurwitz, the mother argues, it is entirely irrelevant.

Analysis

[20] While section 30 of the CLRA gives the court the authority to appoint a person to do an assessment of the needs of the child over the objection of one or both of the parents, it is my opinion that this is not an appropriate case in which to exercise that authority. I make this finding for several interrelated reasons.

[21] The first is that the parties have already gone to considerable expense to retain Mr. Hurwitz and have the initial assessment done. Before ordering an updated assessment over the objection of one of the parties, I would need to be persuaded that the additional cost of the update is merited by “significant developments” since the first assessment. While it is always useful for the court to have the best and most up-to-date evidence available, this must be tempered by the reality that the parties to this litigation do not have unlimited financial resources. Indeed, they have been haemorrhaging money since this litigation began.

[22] Mr. Hurwitz’s July 7 letter states that it is customary that “there be a recommendation to do an update if there is a sense that there may be or have been significant developments likely to occur.” He acknowledges, however, that he does not know whether there have been “significant developments” in this case. Nor does he provide any examples of what might constitute a “significant development”. In the absence of such evidence from Mr. Hurwitz, I am left to rely on common sense to determine whether the factors relied upon by the father constitute “significant developments”.

[23] In this regard, I am persuaded by the mother’s argument that Mr. Hurwitz’s recommendations are premised on the assumption that the overnight access with the father would be successful and he built in a graduated access schedule based on this presumed success. Accordingly, the success of the access schedule and the father’s growth as a parent does not, by itself, constitute a “significant development” in this case.

[24] I also find that the other reasons advanced by the father for the updated assessment, such as the father’s allegations relating to the mother’s courtroom demeanour, are irrelevant to a section 30 assessment and do not constitute a “significant development” that would merit an updated assessment by Mr. Hurwitz.

[25] In addition, I am persuaded that ordering the updated assessment in this case would cause serious financial hardship to the mother, a factor that I may consider under section 30(14) of the CLRA. The mother has presented evidence in the form of a monthly budget that her salary as a dental hygienist, combined with the father’s child support payments of $360 per month, do not leave her with sufficient income to pay for the updated assessment. The father takes the position that the $10,000 cost of the updated assessment should come from the money held in trust from the sale of the matrimonial home. This money is held in trust, however, precisely because the parties are still disputing the equalization of net family property. There is no assurance at this stage that the money held in trust will be sufficient to cover the father’s share of the $10,000 fee. Nor does the father have the ability to fund his share from any other source.

[26] A final factor influencing my decision is that the mother has lost confidence in Mr. Hurwitz as an appropriate person to undertake the assessment. Section 30(3) of the CLRA indicates that the person appointed should, if possible, be someone agreed to by both parties. That is not possible in this case. While the lack of agreement is not determinative since the court has the authority to appoint a person over the objection of one or both parties, it is an additional consideration which leads me to my decision.

Order

[27] For these reasons the applicant father’s motion is dismissed.

[28] If the parties cannot agree on costs, the respondent may make written submission of no more than three pages, plus a bill of costs and any offer to settle this motion within thirty days of this decision, and the applicant may respond within twenty days of receipt of the respondent’s submissions.

Charney J.

Date: November 19, 2015