ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Ly v. Wade, Houle, 2016 ONSC 1155

COURT FILE NO.: 4773/15

DATE: 2016-02-16

BETWEEN:

ANH HOANG LY Applicant

– and –

BRIAN WADE -and KRISTINE HOULE Respondents

COUNSEL:

Peter Tensuda, Counsel for the Applicant

Jennifer M. Vandenberg, Counsel for the Respondent Kristine Houle – Noted In Default

HEARD: February 12, 2016

BEFORE: THE HONOURABLE MR. JUSTICE PAZARATZ

[1] On this motion to change a temporary custody order, both parties agree the two children are imminently going to have to move to a new city. But they can’t agree on which city, or which parenting arrangement should prevail.

[2] I will refer to everyone by their first name in an effort to simplify a complex narrative.

[3] The children are Natalie, who is almost eight years old, and Nathaniel who just turned six. Their mother is Kristine. Their father is Anh.

[4] The parents separated when Natalie was six months old. Natalie remained in the mother’s care. Kristine then entered into a relationship with Brian. But she also briefly attempted reconciliation with Anh, during which time Nathaniel was conceived. While pregnant, Kristine resumed her relationship with Brian. Anh went on to establish a relationship with his current wife Felicia.

[5] For the majority of their relationship Kristine and Brian resided with Brian’s mother Janette in Ennismore, near Peterborough. Natalie and Nathaniel lived with them. Anh continued to reside in Hamilton and had occasional access.

[6] Kristine and Brian had a child of their own, Carter, now age two and a half. But they also had relationship problems, and Kristine ended up moving to Hamilton leaving all three children – Natalie, Nathaniel and Carter – in Brian’s care for several months.

[7] In early 2014 Kristine faced drug-related charges in Hamilton. After the charges were dealt with she returned to live with Brian and the children in Ennismore. But the couple continued to experience difficulties and in late 2014 Kristine briefly moved to a shelter in Peterborough with Natalie and Nathaniel. Soon after, they reconciled.

[8] In February 2015, following an argument with Brian, Kristine took Natalie and Nathaniel to a shelter in Burlington. Carter remained in Brian’s care. Brian visited Kristine and the children on weekends. In May 2015 they all reconciled in Hamilton where Brian found employment.

[9] On July 25, 2015 Brian and Kristine separated again, as a result of her drug use. When Brian advised Anh of events, Anh requested custody of Natalie and Nathaniel. Brian refused, on the basis that Anh hadn’t been very involved in the children’s lives. Natalie and Nathaniel had come to regard him as their father. So Brian returned to Ennismore with all three children.

[10] On July 17, 2015 Anh brought a motion for the two children to be placed in his care. Anh and Brian filed comprehensive materials. Kristine was minimally involved, and she was noted in default.

[11] On August 28, 2015 I made a temporary order on consent: Anh would have custody of Natalie and Nathaniel. Access to Kristine would be in his discretion.

[12] I also made a temporary order not on consent: Brian would have access to the children alternate weekends in Ennismore from Friday at 6 p.m. to Sunday at 6 p.m., commencing September 4, 2015. He would also have visits Wednesdays from 6 p.m. to 8 p.m.

[13] One of the considerations at the time was promoting sibling contact in each household. Natalie and Nathaniel would see Carter during their time with Brian. Anh and Felicia now have two children of their relationship, three year old Anna and one year old Ayva.

[14] In the meantime, the Office of the Children’s Lawyer (“OCL”) assigned clinical investigator Alison Young to prepare a report pursuant to section 112 of the Courts of Justice Act.

[15] Brian and Anh each seek custody. There is consensus that Kristine is preoccupied with personal problems and should currently only have supervised access.

[16] On November 13, 2015 – while the s. 112 investigation was underway – Brian brought a motion to prevent Anh from relocating the ordinary residence of the children from Hamilton to Port Dover. This led to an interesting factual dispute:

a. Brian argued that the August 28, 2015 temporary order was based on Anh’s representation that he was already residing in Port Dover, and that’s where Natalie and Nathaniel would be living.

b. Brian said as it turns out Anh was actually living in Hamilton, and that’s where he enrolled Natalie and Nathaniel to attend school.

c. Brian brought his motion when he learned Anh was planning on relocating the children to Port Dover by Christmas 2015. He urged the court not to allow any more changes to the children’s situation until the s.112 report became available.

[17] In November Anh asked the court to allow him to relocate the children to Port Dover without waiting for the OCL report.

a. He insisted that in August 2015 he made it clear to the court that he intended to live in Port Dover, but that in the meantime he and the children would have to live with relatives in Hamilton until their Port Dover home was renovated.

b. He argued that his August 28, 2015 temporary custody order contemplated that the children would start the school year in Hamilton and then switch at some point to Port Dover.

c. He submitted there was no change in circumstances which justified any last-minute restriction on mobility. His Port Dover home was ready, and he wanted to move in.

[18] When the matter came before me on December 18, 2015:

a. I advised counsel that in making my August 28, 2015 temporary order, I had interpreted Anh’s materials as representing that he was already living in Port Dover. Throughout his pleadings he referred to Port Dover as his address.

b. I was advised the s. 112 investigation had just been completed. The clinical investigator would soon be convening a disclosure meeting. The parties had just been informed the OCL would be recommending custody to Brian.

c. I adjourned the matter to February 5, 2016 to allow the parties to follow up on the OCL’s involvement. I prohibited Anh from relocating the children to Port Dover or changing their schools in the meantime.

[19] The matter returned for argument on February 12, 2016, with the dynamics and respective motions somewhat refined:

a. After the disclosure meeting, the s.112 clinical investigator released her report on January 7, 2016. Brian has brought a motion asking that the OCL’s recommendations – custody in his favour in Ennismore – be implemented immediately.

b. Anh asks that Brian’s motion be dismissed.

c. But Anh’s housing situation has changed. Not only is his Port Dover home now ready – but as of March 1, 2016 he and the children can no longer remain in their Hamilton home. So now he’s again asking for permission to relocate the children to Port Dover. This time it’s not just a preference. He has no other option.

[20] The 23 page s. 112 report was quite detailed and set out the following recommendations:

a. Brian to have sole custody of Natalie and Nathaniel.

b. Anh to have access alternate weekends. Transportation to be shared equally between Brian and Anh.

c. Natalie and Nathaniel to have regular telephone contact with Anh.

d. Brian should not reside with Kristine until she has successfully dealt with her drug addiction.

e. Brian should continue to cooperate with Kawartha-Haliburton CAS, in order to promote stability for the children.

f. Brian to seek counselling for depression.

g. Brian to ensure no drug use in the presence of Natalie and Nathaniel and no exposure to anyone under the influence of drugs.

h. An up-dated report is to be provided in six months, to include an assessment of Brian’s efforts to achieve stability, regular school attendance and a drug-free environment for Natalie and Nathaniel.

[21] Brian submits the clinical investigator urged the implementation of these changes immediately. Anh disagrees with the OCL recommendations and urges the court not to change anything pending trial. No trial date has yet been scheduled.

THE LAW

[22] 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 (SCJ).

[23] 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. Marcy v. Belmore, 2012 ONSC 4696 (SCJ); Genovesi (supra); Grant v. Turgeon, (supra); Mayer v. Mayer, 2002 2753 (ON SC), [2002] O.J. No. 5303; Kirkham v. Kirkham, 2008 CarswellOnt 3644 (SCJ).

[24] There is an inherent danger in relying on an assessment report which has not been tested by cross-examination, regardless of the stage of proceedings. This does not mean that no change can be made at an interim stage based, in part, on the OCL’s report. But any such changes must be made sparingly and be approached with caution. Ganie v Ganie, 2015 ONSC 6330 (SCJ).

[25] An OCL s. 112 report differs from a full s. 30 assessment prepared pursuant the Children’s Law Reform Act. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word. Ganie (supra).

[26] An OCL recommendation may be a factor to be considered on a motion to change a temporary order. But the court must proceed with caution and consider all the circumstances – particularly where there are no exceptional circumstances justifying the change requested. Kirwan v Kirwan, 2014 ONSC 3308 (SCJ).

[27] 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.).

[28] 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. Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442.

[29] 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. Strobridge v. Strobridge, 1994 1626 (ON CA); Dunnett v. Punit, 2006 CarswellOnt 7259 (OCJ).

[30] 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. Dyment, 1969 CarswellOnt 978 (Ont. C.A.).

[31] 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. Marcy v. Belmore (supra).

[32] The delivery of a s. 112 report does not in itself constitute a material change in circumstances justifying a change in an existing arrangement. Marcy v. Belmore (supra). And 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.

[33] Generally, motions for interim implementation of assessment reports should be discouraged.

[34] But at every stage — interim motions and trials — the court has an absolute obligation to address and safeguard the best interests of the child.

ANALYSIS

[35] In the motion before me, there are significant issues and factual disputes which cannot be properly addressed based on untested materials.

[36] Anh says Kristine used to be a great mother until she became involved with drugs and criminal activities. He says Kristine was the one who raised the children, and that Brian has exaggerated his historic role in the children’s lives. Brian counters Kristine left the children in his exclusive care for extended periods, and he successfully raised Natalie, Nathaniel and Carter.

[37] Anh says if the children’s biological mother is no longer available, the next logical choice is their biological father. Brian counters that in every respect Natalie and Nathaniel regarded him as their father because Anh had so little contact with them. Brian says until about August 2015 Anh used to see the children less than 10 times a year.

[38] Anh says Brian’s situation is unsettled and he’s virtually homeless, having to live at his mother’s residence. Brian counters that he and the children lived in his mother’s residence for years in a stable arrangement. The children are comfortable in that home and environment. They have their own bedroom. He suggests his housing situation is more stable than Anh’s because Anh proposes moving the children to a Port Dover home they have never lived in, where there are only two bedrooms for two adults and four children.

[39] Anh says Brian smokes marijuana, as does a tenant named Burns who also lives in Janette’s home. Brian counters that the tenant’s use of marijuana was considered and discounted by the OCL clinical investigator because there is no suggestion that anyone in that household smokes marijuana around the children. He suggests it is hypocritical for Anh to be sounding the alarm about illegal activity – because Anh has a lengthy criminal record and is currently on four years’ probation for trafficking cocaine.

[40] Anh says Brian “panders” to Natalie and Nathaniel too much, and lacks parental discipline and strength. Brian counters that Anh is overly rigid and authoritarian with the children and often insensitive to their emotional needs.

[41] Anh says the children missed a lot of school when they were with Brian, but now they attend regularly and are doing well. Brian acknowledges there were attendance issues while he was having problems with Kristine. But he says the OCL investigator was satisfied that he has addressed these issues, and he has made a commitment to the children attending school regularly.

[42] Anh says he can provide stability for the children – something Brian has never been able to provide. He submits the OCL’s recommendations include many conditions which reflect a lack of confidence or certainty about Brian’s long-term ability to meet the children’s needs.

[43] Brian says he has an extremely close and loving relationship with both Natalie and Nathaniel. They call him “daddy” and were devastated when they were uprooted from his care and went to live with Anh. Anh admits both children have a close bond with Brian. Anh told the clinical investigator “It’s weird, they talk about him more than they talk about their mother.” Nonetheless, Anh feels that since Brian is not their biological father, he should have no claim to them. He questions whether Brian has a financial motive for seeking custody.

[44] Brian says while Anh is able to meet the children’s physical needs, he is not tuned-in to their emotional needs. Anh says he provides good values for his children and wants them to grow up strong.

[45] As well, Brian notes that Anh hasn’t filed a Dispute in relation to the s.112 report. He feels Anh’s affidavit does not raise credible concerns about the clinical investigator’s methodology or recommendations.

[46] Anh urges the court not to disrupt the status quo:

a. He emphasizes the OCL’s recent report is only one piece of information. Until all of the evidence has been tested, the status quo should be maintained.

b. In his view, the status quo entails Natalie and Nathaniel continuing to reside with Anh.

c. The only thing that would change when they move to Port Dover is their school.

[47] Brian says Anh’s reliance on the “status quo” is selective and misleading.

a. He acknowledges that the most recent status quo is that the children have been residing with Anh. But that only started mid-summer 2015.

b. Before that – and for virtually all of the children’s lives – the status quo was that they were living with Brian and/or Kristine. Even during those brief periods when they were with Kristine, Brian was still seeing the children more than Anh.

c. In Brian’s view, except for the last few months, the real status quo is that Brian has done everything in the children’s lives, and Anh has been an absentee father.

[48] In any event, Brian emphasizes that Anh’s pending relocation from Hamilton means the status quo is no longer an option.

a. One way or another, the children will be changing cities. Either Port Dover (where they have never lived) or Ennismore (where they have already lived and have strong connections).

b. One way or another, the children will be changing schools. Either to a school they have never attended in Port Dover. Or to a school they used to attend in Ennismore where they already have friends and the school bus picks them up at the end of the street.

c. One way or another, the children will be changing residences. Either to a two bedroom home in Port Dover which will be new to them and possibly overcrowded. Or to his mother’s home in Ennismore, where they used to live and still have their own bedrooms.

d. One way or another they will move from Hamilton to a different community. They don’t know Port Dover. They know and like Ennismore.

[49] Clinical investigator Young provided the following observations of the interactions between Anh, his wife, and Natalie and Nathaniel.

a. Anh and his wife presented as attentive towards the children, but in a somewhat authoritative and detached manner.

b. Their communication was largely characterized by a series of orders directed at the children.

c. There was little attempt to engage the children in meaningful dialogue.

d. While Anh’s wife was openly affectionate toward their own youngest child Ayva, there was no evidence of physical affection towards the other children.

[50] The clinical investigator provided the following observations of interactions between Brian and the children.

a. Natalie and Nathaniel were very excited to show off their home, the large yard and the “tree fort that Brian built.”

b. Brian engaged with Natalie, Nathaniel and Carter as they played together with building blocks. He sat on the floor beside them and took direction from them. The children smiled and laughed often.

c. Brian employed effective child management techniques.

d. Brian ensured the children were properly dressed for outdoor activities and promoted safe bike riding.

e. Nathaniel approached Brian’s mother Janette several times, climbing onto her lap with a blanket and snuggling in beside her. She was good humoured and affectionate with him. Nathaniel smiled frequently and appeared to be relaxed.

f. Overall, Brian presented as attentive, patient and nurturing in his interactions with the children.

g. He demonstrated consistency and firmness in his handling of behavioural issues and the children responded well.

h. Janette presented as loving, affectionate and good-humoured.

[51] The clinical investigator provided the following information about Natalie.

a. She referred to Anh as “Daddy” and Brian as “Brian”.

b. Initially she did not offer an opinion about where she wanted to live, but she said she was “happier” when she lived with Brian. Later she said she did not know where she would rather live and said “I don’t want to hurt anyone’s feelings.”

c. She wished that they would stop moving around so much.

d. She preferred her old school in Ennismore.

e. She was afraid when she and Nathaniel had to move to Anh’s home last summer. She seemed unclear about how much interaction she had with Anh before going to live with him.

f. She likes living with Anh and Felicia. Felicia is nice.

g. She likes to visit Janette on weekends.

h. When Natalie is feeling sad, hurt or sick, the person she most wants to be with is Brian “because he makes me feel better a lot.”

i. Natalie said Anh tells them that Brian is not their real dad and that Brian is trying to take them away.

j. Young concluded that while Natalie has indicated a slight preference to return to live with Brian, she appears to be experiencing divided loyalties and is hesitant to express her feelings.

[52] The clinical investigator provided the following information about Nathaniel.

a. He also referred to Anh as “Daddy” and Brian as “Brian”.

b. Nathaniel stated “You came to see us to see if we want to live with Daddy or Brian, so I could make my choice. I want to live with Brian.”

c. He said he “loves” Brian and Brian “takes care of us, gives us baths, plays with us. Daddy doesn’t because he always has to work and he goes straight to bed after work.”

d. Nathaniel said he misses Brian.

e. He said when he is hurt or sad he wants to be with Brian or Janette.

f. He said Felicia “makes us food but she doesn’t play with us.”

g. Nathaniel said Anh says “Brian’s not your Dad, don’t talk about him.” This makes Nathaniel feel sad. But Anh did tell him that he would never stop Nathaniel from seeing Brian.

h. Nathaniel wants to return to his old school in Ennismore.

i. When asked what he likes about living at Anh’s house, Nathaniel replied “Mostly nothing.”

j. Nathaniel told the clinical investigator “I want to live with Brian. Are you going to make that happen?”

k. Young concluded that Nathaniel is “clearly struggling”. He articulates that he is very unhappy in his current environment. He misses Brian, Janette and his home and school in Ennismore.

[53] Young summarized her concerns:

a. Natalie and Nathaniel have experienced a considerable lack of stability over the past two years. Natalie has attended six different schools already. They need stability and a sense that their life will not constantly be changing.

b. While Anh should be commended for his willingness to take responsibility for the children, the evidence suggests he has played a fairly minimal role in their lives until recently. He demonstrates only a perfunctory knowledge of their personalities and interests. Natalie and Nathaniel regard Brian as their “psychological father”. He has been their primary caregiver, and he has shown considerable commitment to them. Nathaniel in particular is struggling to cope with his separation from Brian.

c. While Anh is able to provide much-needed stability, evidence suggests he lacks the ability to respond to the children’s emotional needs. He demonstrates insensitivity to the emotional impact on the children of recent events. He reminds them Brian is not their father and he does not want to hear them talk about wanting to return to live with him. Anh meets their instrumental needs but not their emotional needs.

d. While biological connections are important, “evidence suggests that Natalie and Nathaniel have a closer connection with Brian.”

[54] The facts of this case are complex and disputed. If the status quo was both an option and meeting the children’s needs, there would be no justification for tampering with a successful arrangement pending trial – notwithstanding any long-term recommendations of an untested s. 112 report.

[55] But the continuation of the status quo – or more accurately, the recent status quo – is not an option. And there is troubling information that the children’s current placement is not meeting their emotional needs.

[56] No later than March 1, 2016 Anh would have to relocate Natalie and Nathaniel to a new house and a new school in a new community. In the context of all of the upheaval these children have already experienced, that would be yet another major change in their lives.

[57] Once it is established that a material change in circumstances has arisen, the court must consider all available evidence to try to address and ensure the best interests of the children.

[58] In this respect, the observations and evidence of the OCL clinical assessor are relevant and of assistance, in combination with the affidavit materials filed by the parties themselves. The s.112 report is untested. The affidavits filed by the parties are untested. That’s the nature of motions in family court. But children’s lives can’t be put on hold, and temporary orders must be made based on the best information available.

[59] I am satisfied that notwithstanding Anh’s status as biological father, Brian has historically assumed primary responsibility for Natalie and Nathaniel and in every respect he is their “psychological father.”

[60] I am also satisfied that the most recent change the children have experienced – moving to Hamilton to live with Anh last summer – has been only partially successful. Anh is meeting their instrumental needs, but not their emotional needs. Nathaniel in particular is struggling being away from Brian and Ennismore. Given the young ages of Natalie and Nathaniel, their preferences and emotional reactions are only one factor. But an important factor.

[61] Since significant change to the temporary parenting regime is now inevitable, I find this is an exceptional situation in which it is necessary and appropriate to consider the recent s. 112 report – in combination with all of the other evidence. The prospect of yet another major disruption in the children’s lives – moving from Hamilton as of March 1, 2016 – must trigger a comprehensive and sensitive analysis of their overall best interests. These children have experienced too many disruptions. If a further change is unavoidable prior to trial, it must be carefully thought out utilizing all available information.

[62] In that context, I am satisfied that returning Natalie and Nathaniel to Brian’s care in Ennismore will better meet the children’s needs than having them move to Port Dover with Anh. They have a strong emotional attachment to Brian, and a comfort level living in Ennismore.

[63] As well, an alternate weekend access regime for Anh is still significantly more contact than the biological father was having with the children prior to the summer of 2015.

TEMPORARY ORDER

[64] Brian shall have custody of Natalie and Nathaniel, commencing no later than his next alternate weekend with the children pursuant to the August 28, 2015 order.

[65] Anh shall have access to the children on alternate weekends Friday at 6 p.m. to Sunday at 6 p.m.

[66] Transportation of the children to facilitate access shall be shared equally between Anh and Brian. In the absence of any other agreement, Brian shall deliver the children to Anh’s residence for the Friday exchange time, and Anh shall deliver the children to Brian’s residence for the Sunday exchange time.

[67] Anh shall also have regular telephone access to the children, at least every second day that he does not have direct contact with them.

[68] Kristine shall have access in the discretion of Brian.

[69] Brian shall continue to cooperate with Kawartha-Haliburton CAS in relation to the children.

[70] Brian shall seek counselling for depression.

[71] Brian shall ensure that the children are not exposed to any person who is using or under the influence of drugs.

[72] Brian shall keep Anh informed as to ongoing issues in the children’s lives, and Anh shall be entitled to communicate directly with the agencies and professionals involved with the children, such as schools, doctors and recreational personnel.

[73] The parties shall immediately contact the trial co-ordinator to schedule a trial date and a trial management conference.

[74] In the event that counsel wish to address any remaining issues other than costs, they should arrange a time to appear before me.

[75] If only costs remains in issue, Brian shall serve and file written costs submissions within 21 days of this judgment. Anh shall serve and file responding costs submissions within 15 days of receiving Brian’s submissions. Brian shall then serve and file any reply costs submissions within 10 days of receiving Anh’s submissions. These timelines may not be extended by counsel.

Pazaratz, J.

Released: February 16, 2016

CITATION: Ly v. Wade, Houle, 2016 ONSC 1155 COURT FILE NO.: 4773/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANH HOANG LY Applicant

-and-

BRIAN WADE

-and-

KRISTINE HOULE Respondents

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: February 16, 2016.