Court File and Parties
CITATION: Slaght v. Taylor, 2016 ONSC 1904
COURT FILE NO.: F171/09
DATE: 2016-03-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lawrence Vincent Slaght, Applicant
AND:
Tammy Louise Taylor, Respondent
BEFORE: The Honourable Mr. Justice Pazaratz
COUNSEL: Mr. J. Mountford, Counsel for the Applicant
Ms. A. Katz, Counsel for the Respondent
HEARD: March 16, 2016
MOTION ENDORSEMENT
This was a motion brought by the Applicant father to implement, on an immediate and temporary basis, the recommendations of a section 112 report dated November 12, 2015, in relation to twin 13 year old daughters Mackenzie and Madison.
This is a high conflict file with a long history of acrimonious litigation and multiple orders since the parties separated in 2009. There has also been significant involvement by children’s aid societies and police.
Pursuant to a March 28, 2011 final order based on minutes of settlement the parties had joint custody and equal time sharing. There were numerous problems thereafter.
The most recent final order was made by Justice McLaren on October 4, 2013, granting sole custody to the Applicant with liberal access to the Respondent. Again, this was based upon minutes of settlement.
But more problems emerged literally one year ago when Madison refused to return to the Applicant’s home after both girls spent March break 2015 with the Respondent. More emergency motions ensued, and on April 10, 2015 Justice McLaren made a temporary without prejudice order placing Madison with the Respondent. The girls continued to spend alternate weekends together in one or the other parents’ homes.
Pursuant to Justice Brown’s order of April 8, 2015 the Office of the Children’s Lawyer (OCL) again became involved. Karen Bridgman-Acker’s lengthy report includes 18 numbered recommendations, including:
a. Both children should reside primarily with the Applicant in his custody.
b. The children should spend alternate weekends Friday after school to Monday before school and Wednesdays after school until 8:00 p.m. with the Respondent.
c. During the summer the children should spend alternate weeks with each parent.
d. There should be expanded time sharing for special occasions.
e. Information from third parties relating to the children should be shared.
f. The Applicant should consult the Respondent about medical issues, but the Applicant should have the final decision making authority.
g. None of the caregivers should, or allow anyone else to, expose the children to adult conflict, discussion of adult issues or disparaging comments about the other.
h. Neither parent should question/interrogate the children about their time spent with the other parent.
i. The father should cease videotaping the children and the mother without their consent.
j. The parties should communicate through “Our Family Wizard” or “2 Houses”.
The Applicant brought a motion on December 14, 2015 which basically seeks to implement all of those recommendations immediately, on a temporary basis pending trial. Even though this is a motion to change, counsel have agreed that an oral hearing will be required, with numerous witnesses (including the OCL clinical investigator). During today’s argument of the motion, counsel scheduled a five to seven day trial for the sittings of October 3, 2016, Purge Court September 26, 2016 9 a.m.
The Respondent disagrees with the s.112 recommendations, and opposes any change to a year-long status quo (each parent having one of the twins) pending trial.
The Applicant’s basic position:
a. Madison should never have been removed from his household in March 2015.
b. The temporary without prejudice order of April 10, 2015 was the result of manipulation by the Respondent which was contrary to Madison’s best interests.
c. The Respondent should not be allowed to benefit from an inappropriate status quo created by the amount of time the OCL required to prepare a report.
d. The section 112 recommendations are logical and emphasize the need for these twin daughters to be living together again.
e. Madison has not been doing well in school since she moved to the Respondent’s home.
f. It is in the best interests of the children that all of the OCL’s recommendations be implemented immediately, with Madison returning to live with Mackenzie in the Applicant’s home.
- The Respondent’s basic position:
a. Madison is doing fine. She is doing well in school. In fact she is probably doing better than Mackenzie in the Applicant’s household.
b. Madison chose to relocate to the Respondent’s home as a result of problems while she was living with the Applicant (including problems at her school). She wanted to relocate to the Respondent’s home. She wants to remain with the Respondent. In fact, she has stated that she will defy any order requiring her to return to the Applicant’s home.
c. The Applicant is now attempting to dredge up old allegations which pre-date the existing final order of October 4, 2013. Similarly he is inappropriately attempting to rely on an old assessment prepared pursuant to section 30 of the Courts of Justice Act.
d. It is in Madison’s best interests that she remains primarily in the Respondent’s care.
e. More to the point, a stable and beneficial status quo should not be disrupted on a temporary basis, during a school year, based upon an untested section 112 report which is hotly disputed.
- In Ly v. Wade 2016 ONSC 1155 this court recently reviewed in some detail the case law relating to the use of professional custody/access reports on a temporary basis pending trial. In paragraphs 22 to 34 I summarized the principles relevant to this case.
a. Assessments and section 112 reports are prepared for the trial process where they will form part of the evidence, and be subject to scrutiny as to credentials, methodology, observations, factual findings, theories, and recommendations.
b. Courts should be extremely cautious about relying upon untested reports at the motion stage.
c. There should be no presumption that an assessor’s recommendations will prevail at trial. The court should not delegate decision making to the assessor of clinical investigator.
d. The weight – if any – to be given to reports can only be properly determined after the information has been tested, and in the context of the overall evidence available at trial.
e. In some rare cases, if a report reveals an urgent problem requiring immediate attention or correction, the court has an obligation to make such immediate changes as may be necessary to protect a child from physical or emotional harm. But even in those circumstances, the court should act cautiously and implement only those changes as may be absolutely necessary to deal with a problem which cannot be allowed to continue pending trial.
f. Full implementation of professional reports on a temporary basis is extremely rare.
g. The status quo should generally be maintained pending trial, particularly if it has been in place for a long time – and especially if the status quo is based upon a previous court order.
h. There must be compelling reasons to disrupt the status quo or implement untested and disputed changes proposed in a professional report.
i. The court must guard against parties misusing section 112 reports or assessments as a strategic device to obtain a more favourable status quo pending trial.
j. Children should not be disrupted unless the court has some level of certainty that an immediate change is absolutely necessary.
I have reviewed the evidence carefully. I am particularly concerned about Madison and Mackenzie currently living in separate households.
But neither the affidavits nor the section 112 report suggest that there is any sort of urgent or untenable situation which requires immediate intervention by the court. There is certainly no suggestion that Madison urgently wants to relocate back to the Applicant’s residence. Indeed, the clinical investigator describes her as “ambivalent.”
I must be mindful of the fact that these children have already been exposed to a great deal of upheaval and conflict. Particularly in such circumstances, the court must make sure that no further changes are imposed without full information. And that comprehensive information will only become available at a trial.
There is, however, one item which needs to be addressed. The OCL has recommended that the Applicant stop videotaping the children and the Respondent. Madison has also expressed some discomfort with this. The case law is clear that such conspicuous electronic recording is very damaging to family dynamics.
Temporary order: Neither party shall audio or videotape the children or the other party for purposes of documenting situations for litigation purposes.
Otherwise, the Applicant’s motion is dismissed.
The Applicant shall pay to the Respondent costs of this motion fixed at $2,000.00 inclusive of disbursements and H.S.T.
Pazaratz, J.
Released: March 16, 2016