J.S.G. v. E.M.G., 2016 ONSC 2233

CITATION: J.S.G. v. E.M.G., 2016 ONSC 2233

COURT FILE NO.: FC-13-2811

DATE: 2016/04/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.S.G.

AND

E.M.G.

BEFORE: Justice A. Doyle

COUNSEL: Karla Policelli, counsel for the Applicant

Tanya Parker Wallace, counsel for the Respondent

HEARD: March 15, 2016

ENDORSEMENT

[1] V.S.G., who is 10 years old, lives on a week-on/week-off basis with his parents. This parenting arrangement has been in existence since the interim Order of Justice Minnema dated September 2014. The child is happy in both homes and both parents are currently demonstrating good parenting ability.

[2] The parties agreed to a custody/access assessment to be conducted by Dr. Frances Smyth. Her report dated August 2015 recommended sole custody and primary residence of V.S.G. to the Applicant father for a period of one year with access to the Respondent mother. At the end of the year, the parenting arrangement could be reviewed to determine if the mother had dealt with her mental health issues and substance addiction.

[3] Immediately after the assessment was released, the father’s counsel sent a letter to the mother, offering to resolve the matter by incorporating many of the recommendations of the assessment and clauses dealing with child support. The mother, who was not represented at the time, responded one week later, with a partial acceptance of the offer. The next day, she withdrew her partial acceptance.

[4] This is a motion brought by the father for a summary judgment implementing the terms of his offer dated September 10, 2015.

[5] In the alternative, the father is requesting interim sole custody of V.S.G., born […], 2006, access to the mother, a determination of child support and reimbursement for the cost of the custody/access assessment prepared by Dr. Frances Smyth.

[6] The mother opposes this motion on the basis that she was under duress when she purported to accept the father’s offer, as she felt she had no other choice, especially since she could no longer afford counsel. Regarding the change of custody and access proposed by the father, the mother submits that there has been no material change of circumstances since the temporary order of Justice Minnema dated September 22, 2014. Furthermore, she submits that courts should not change the status quo unless exceptional circumstances exist which would justify a change pending trial.

[7] The issues are as follows:

i) Should summary judgment issue in accordance with the father’s offer?

ii) If not, should there be a change in V.S.G.’s parenting arrangement pending trial?

iii) What is the amount of child support payable?

iv) Who should be financially responsible for the cost of Dr. Smyth’s assessment?

Background

[8] The parties were married on October 22, 2003 and separated on May 15, 2007. They divorced on November 11, 2008. V.S.G. was born on […], 2006.

[9] At the time of the marriage, the parties were living in England.

[10] Upon separation, the parties agreed that the mother would have custody of the child and she was permitted to move to Calgary, Alberta. The father would visit V.S.G. in Calgary which included extended visits in the summers of 2012 and 2013. There is extended family from both sides in Calgary. The father moved to Ottawa in 2010.

[11] On November 25, 2013, the mother and the child were in a car accident in Calgary. The mother left the scene of the accident and was arrested and charged with driving under the influence of alcohol and leaving the scene of an accident. The mother’s sister picked up V.S.G. from the Calgary Children’s Hospital where he was released. He had some neck and chest pain. The mother attempted suicide at that time.

[12] On November 26, 2013 the father arranged for V.S.G. to come to Ottawa to reside with himself and his new wife, L.E.G.

[13] After the mother was released from hospital, she moved to Ottawa. Initially, the visits by the mother to the child were supervised.

[14] The father commenced his application in November 2013, and litigation ensued regarding custody and access issues.

[15] A settlement conference was heard on July 18, 2014 which resulted in a consent temporary order whereby the child would have primary residence with the father, and the mother would have access on a two-week rotating schedule: in week one she would have access every Tuesday and Thursday from 4:30 p.m. to 8:30 p.m. and from Friday overnight until Sunday at 8:30 p.m.; in week two access would run every Tuesday and Thursday from 4:30 p.m. to 8:30 p.m. The parties also agreed on holiday access.

[16] On September 16, 2014, Justice Minnema ordered that the parties would have interim joint custody of V.S.G., who would spend equal time with his parents on a week-on/week-off basis. The mother was not to consume alcohol when she was in a caregiving role. The father was to pay $958 per month as child support based on an annual income of $110,000 and he would not be obligated to contribute to special and extraordinary expenses.

[17] On consent, the parties agreed to a temporary order dated April 2, 2015 to proceed with a custody and access assessment. The father agreed on a without prejudice basis to pay for the assessment which cost $8,300.

[18] Dr. Frances Smyth’s assessment dated August 31, 2015 recommended that the father should have sole custody of V.S.G. for a period of one year to allow the mother to seek treatment for her substance abuse. She recommended that the mother follow through with the psychiatric assessment recommended by her family doctor and pursue any treatment recommended by the psychiatrist.

[19] Dr. Smyth recommended primary residence with the father and that V.S.G. would visit with his mother from Thursday after school until Monday morning on an every other week basis. She also recommended that V.S.G. see his mother Monday evenings on the alternate weeks after school until 8:30 p.m. The holiday periods would be divided equally. Although not within her mandate, she recommended that the father continue to pay for activities as he deemed fit at his own discretion. Finally, she recommended that V.S.G. obtain counseling, as he has observed conflict between the parents.

[20] The mother was represented by counsel until May 2015.

[21] The father’s counsel’s letter dated September 10, 2015 offered the following resolution:

i) the father would have sole custody of V.S.G.;

ii) the mother would have access as per Dr. Smyth’s recommendations;

iii) the holiday schedule would be as per Dr. Smyth’s recommendations;

iv) V.S.G. would receive counselling;

v) the mother would pay child support in accordance with the Guidelines;

vi) the parties would contribute equally towards V.S.G.’s agreed-upon special and extraordinary expenses; and

vii) each party would bear his or her own costs.

[22] In an e-mail by the mother to father’s counsel dated September 17, 2015, she stated the following:

Dear Ms. Policelli:

I just wanted to touch base with you briefly. I am happy with the proposed parenting schedule requested by J... Please let me know when this is to commence. I also consent to J… having sole custody of V.S.G. for a period of one year and to be re-addressed if necessary.

I finished school and I’m actively seeking employment. I will provide you with evidence of this early next week. I will bring by your office a copy of my diploma and a printer of the jobs I’ve most recently applied for.

If there is anything you need prior to this, please let me know. Kind regards E. G.

[23] The next day, Friday, September 18, 2015, the mother sent another e-mail to the father’s counsel as follows:

Good afternoon

I’ve received some legal advice today. As you know, I ran out of money to pay a lawyer. I’m not happy with Mr. G.’s demands and the many lies in his assessment please go ahead with his proceedings. Once I have court papers from you I will be in touch immediately. As per Judge Minnima’s (sic) endorsement, we will stay with week on/week off shared custody and Mr. G. as child support. Please let Mr. G. know I will be taking V.S.G. up on Sunday evening at 8:30 PM. Sincerely E. G.

[24] On consent, the parties have agreed to redact portions in the materials which refer to the father’s employer. This information is not relevant to the proceedings and given the nature of the father’s work, could pose security issues for the father and his employer. The court directs the parties to remove references to the father’s employer contained in the Continuing Record.

i) Should summary judgment issue in accordance with the father’s offer?

Father’s position

[25] The father states that there was an acceptance by the mother of the parenting provisions set out in his letter to the mother.

[26] He relies on Rule 16 for summary judgment and the Supreme Court of Canada decision in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. He submits that court should discourage litigation and parties should be bound to their agreements.

Mother’s position

[27] The mother submits that she did not have counsel when she accepted the offer.

[28] She felt under duress because she had no counsel, no funds for counsel and the litigation and the father’s continuous litigious position was difficult to handle.

[29] She felt she had no choice but to accept the offer.

Legal Principles

[30] Rule 16 provides:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

[31] Rule 16(9) stipulates that if the court does not grant summary judgment, the court may specify what facts are not in dispute, set out the issues and give directions and impose conditions.

[32] In Hryniak v. Maudlin, the Supreme Court stated at paragraph 34:

…the summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial…. Generally, summary judgment is available when there is no genuine issue for trial.

[33] At paragraph 49, the court stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[34] The Family Law Act, s. 55 (1), requires that domestic contracts be made in writing, signed by the parties and witnessed. However, in Scherer v. Paletta, [1966] 2 O.R. 524, the Court of Appeal confirmed that the court has jurisdiction to enforce settlements.

[35] The Ontario Court of Appeal in Geropoulos v. Geropoulos (1982), 35 O.R. (2d) 763 (C.A.), stands for the proposition that if litigation is commenced, compliance with section 55(1) of the Family Law Act is not required. A settlement may be enforced in accordance with the principles set out in this Scherer case.

[36] Justice Perell in Pastoor v. Pastoor (2007), 48 R.F.L. (6th) 94 (Ont. S.C.), confirmed that settlements of existing matrimonial litigation do not need to comply with section 55 of the Family Law Act. At paragraph 7, he quotes from Geropoulos at pp. 768-769:

The court’s jurisdiction to enforce settlement or refuse to do so, notwithstanding any agreement between solicitor or counsel, is well-established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court’s overriding jurisdiction with respect to domestic contracts.

[37] In Harris v. Harris (1996), 7 O.T.C. 265 (Gen. Div.), Justice Laforme stated that Geropolous has been interpreted as holding that the courts should encourage settlement and retain the discretion to determine whether a settlement is enforceable.

[38] Although the agreement does not have to conform with the Family Law Act section 55, Justice Laforme indicated in Harris at paragraph 10, that there were certain factors that the court should consider when determining whether a settlement is enforceable:

1. Was either of the parties represented by legal counsel or the beneficiary of legal advice?

2. Was either party otherwise disadvantaged at any time during the course of the negotiations?

3. Can the written material the parties prepared, or the oral presentations, that are being relied upon support a prima facie conclusion that either constitutes a settlement agreement?

4. Does the evidence demonstrate that the parties intended that the written or oral representations or negotiations are to be binding on them?

5. Was there an intention that some final act or determination be made before the settlement was to be final and binding?

6. Does the enforcement or non-enforcement of the negotiated resolution result in an injustice to either of the parties?

7. Does enforcement encourage negotiated settlement and discourage litigation and does it support the overall purpose and intent of the principles of the Family Law Act?

[39] At common law, the acceptance must match the offer. An acceptance that indicates different terms cannot accept the offer. Did the father reasonably understand that the mother’s communication constituted an acceptance? See: UBS Securities Canada Inc. v. Sands Brothers Canada, Ltd., 2007 ONCA 405, 224 O.A.C. 315.

[40] In determining whether a contract was formed and hence should be enforced, the court must apply the objective test of contract formation. The Court of Appeal quotes from Waddams on the Law of Contracts (5ed) at page 103:

But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an inquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee.

[41] It is a basic principle of contract law that an offer which is responded to with an acceptance including an added condition is a counter-offer.

Analysis

[42] Before considering whether there was undue pressure on the mother to accept the offer, or whether there is a triable issue, the court must consider whether the mother actually accepted the offer.

[43] The court has reviewed the correspondence, and notes that the mother accepted the father’s offer allowing him to have custody and change her access, but her caveat was that it would be in place for one year at which time it would be reviewed. This was recommended by Dr. Smyth in her report. The mother’s response in the e-mail constituted a counter-offer.

[44] Therefore, the court finds that there was no acceptance of the offer. There was a counter-offer and hence there was not a meeting of the minds.

[45] Given the lack of meeting of the minds, the court cannot find that a summary judgment should issue. Custody, access and child support are triable issues.

[46] Based on the factors as set out in Harris, the court finds that there was not a prima facie case establishing that this matter was settled.

[47] This is not a matter that falls into the type of cases anticipated by Rule 16 and the Hryniak case.

[48] Therefore, the motion for summary judgment is dismissed.

ii) Should there be a change in V.S.G.’s parenting arrangement pending trial?

Father’s position

[49] In the alternative, the father is requesting a change of the parenting arrangements and he relies on the assessment of Dr. Smyth and her recommendations.

[50] In recommending that V.S.G.’s primary residence be with his father, Dr. Smyth found that the mother had not dealt her mental health issues and her alcohol dependency.

[51] Dr. Smyth remarked that the mother had not completed an alcohol assessment nor provided evidence that she has obtained treatment through a psychiatrist.

[52] The father states that it is in V.S.G.’s best interest that he reside with him. In addition he believes that the mother’s hostile e-mails to him demonstrate that she is drinking when V.S.G. is residing with him. The father is also concerned about her parenting abilities and uses the example of an alleged fire in her home.

[53] He is concerned with the lack of structure at the mother’s residence, and notes that upon return from his mother’s home, V.S.G. demonstrates non-compliant behaviour.

[54] The fresh evidence of the Child and Family Services records from Alberta and the report of Dr. Smyth were not before the court at the motion before Justice Minnema. This new evidence can be considered grounds for a material change in circumstance.

[55] In the Child and Family Services records from Alberta the mother admits she had attempted suicide on four occasions in the past by prescription medication. She did admit at the time to drinking a bottle of wine in one evening, and that she was deeply affected by her mother’s death.

Mother’s position

[56] The mother’s position is that there should not be a change in the custodial arrangement unless there are exceptional circumstances. The case law suggests that, even when an assessment is completed, the court should not change the status quo on an interim basis as that could mean it would be changed again at the time of trial.

[57] In addition, there have been no suicide attempts or issues dealing with alcohol since the order of Justice Minnema. The mother has abided by the order that she not consume alcohol.

[58] She just recently retained counsel and did not have an opportunity to obtain updated medical reports. She attests in her affidavit that she is continuing to obtain counselling and treatment.

[59] The mother did seek counselling from Family Services of Ottawa when she arrived here and has been seeing a counsellor on a monthly basis since March 2014. She has also seen her family doctor on a regular basis, who has been prescribing and monitoring her antidepressant medication. Her doctor had referred her to a psychiatrist in September 2014. She indicates that she is prepared to follow up with a psychiatrist, but she indicates that she has not felt depressed or experienced any suicidal ideation since arriving in Ottawa.

[60] The mother is considering obtaining a critique of Dr. Smyth’s assessment and she believes that there are no exceptional circumstances to change the current custodial arrangement for V.S.G.

Dr. Smyth’s assessment

[61] During the assessment, V.S.G. told Dr. Smyth that he is happy to be in both parents’ homes. On page 14 of her report, Dr. Smyth stated: “He stated that he perceived that his father wanted him to live with him but he wanted equal time with both parents”.

[62] In addition the doctor stated, “When asked what worried him most at this point in time, he stated that his chief worry was that one parent would take him away from the other”.

[63] The report suggests that the mother has an alcohol dependency. The scores also suggest that she is experienced some form of post-traumatic stress disorder or anxiety disorder. The test results also suggested a high score on the compulsive scale. The assessor states that “compulsive individuals experience a conflict between hostility towards others and fear of social disapproval.” She concludes that “…it is probable that she attempts to control her drinking and does not want others to be aware of her excessive use of alcohol.”

[64] Regarding the father, test results show that he is an outgoing social individual who enjoys attention from others. His scores also suggested a strong need for repeated signs of acceptance and approval from others and defence problems which can lead to problems with interpersonal relationships. His scores show that he is defensive and is trying to avoid showing any psychological weaknesses and appear responsible and in control of his life.

[65] She describes V.S.G. as an attractive outgoing child whose appearance is in keeping with his chronological age. He appears to be of above average intelligence and is able to express his thoughts and feelings. She indicates that he appears happy in both homes and that he gets along well with his stepmother and his new baby sister. When asked about whether he had any concerns about his parents he indicated that he didn’t and did not appear at all defensive or evasive in this response. In the home observations, Dr. Smyth observed that V.S.G. was comfortable with both his father and step mother, as well as with his mother. The classroom teacher did not observe any emotional or social problems and no difficulties in any behaviour as a whole arose when he was staying with his mother as opposed to his father.

[66] Dr. Cutler, the mother’s family physician, indicated that she felt the mother’s mental health was quite stable at the present time and that she never expressed a desire to harm herself. She indicated that the mother had a diagnosis of major depressive disorder with features of anxiety. She was referred to a psychiatrist in September 2014, but did not follow through with the initial appointment. Dr. Cutler has not referred the mother for treatment of substance abuse and she did not perceive this as a concern at the present time.

[67] Dr. Smyth spoke to Ms. Margaret Kelley, a social worker with Family Services Ottawa, and indicated that the mother has not experienced any suicidal feelings since her last attempt in November 2013. The mother is taking her medication on an ongoing basis. The mother had acknowledged to her that she had used alcohol to cope with stress in the past, but claims that she has significantly reduced alcohol use since November 2013 and does not drink in front of her son.

[68] In conclusion, Dr. Smyth has no concerns with respect to the mother’s parenting skills. The doctor believes that the results of the psychological testing on the mother suggest that she would be vulnerable to becoming overwhelmed by depression in the future should she encounter significant stressors. Dr. Smyth expressed limited concerns regarding the mother’s lack of engagement in intensive therapy to deal with these issues, but noted that a more significant concern is the mother’s lack of treatment concerning the substance abuse since her suicide attempt. She states that the results show that alcohol will aggravate her mental issues. Her siblings have reported long standing problems in their affidavits and the mother had acknowledged in her affidavit that the hospital staff had spoken to her siblings about entering treatment for substance abuse.

[69] The mother had acknowledged her use of alcohol as a coping mechanism. Dr. Smyth does not believe she can resolve her problem with alcohol without any formal intervention. She does not believe that a change in custody needs to be permanent. Once the mother obtains treatment, joint custody and shared parenting could resume.

Legal Principles

[70] In determining the best interests of the child, the court is guided by s. 24 of the Children’s Law Reform Act:

24 (2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[71] In Laroque v. McComb (1992), 43 R.F.L. (3d) 185 (Ont. Gen. Div.), Justice Haines indicated that the court is entitled to consider expert evidence on an intern motion but must exercise caution when varying interim custody. He stated that although there should be caution when varying interim custody orders, the court may do so when there are exceptional circumstances. In that case, the allegations against the mother had proved unfounded in the assessment. The motions judge found that in the circumstances in that case there was no risk to the child that would bar a change to the custodial arrangements as recommended by the assessor. The Court of Appeal held that that the motions judge had made no error in reasoning that special circumstances existed justifying an interim variation.

[72] In Bos v. Bos, 2012 ONSC 3425, Justice Mitrow was dealing with a motion by the father for an order implementing on an interim basis, recommendations of the assessment. Justice Mitrow stated that the general principle of exercising caution in an interim motion is not as rigid and inflexible as to prevent the court from considering an assessment where the report provides additional probative evidence to assist the court, particularly where the order sought would not be a substantial departure from the existing order or status quo.

[73] Justice Mitrow confirmed that on a motion for change of custody where an assessment has been prepared and the Court is being asked to consider whether there is an exceptional circumstance, a judge must weigh the appropriate factors within the context of the particular case. At paragraph 26, he outlines some of the factors to include:

i) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

ii) What other evidence is before the court to support the change requested?

iii) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

iv) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[74] Justice Greer in Ingles v. Watt (2000), 13 R.F.L. (5th) 399 (Ont. S.C.), allowed a change to access by the father on an interim motion when the assessor recommended the removal of supervised access as there was no evidence the children had been sexually abused by the father. Her Honour stated that it was important that both parties proceed to trial having quality access to the children and that overnight access to the father was important prior to trial.

[75] Similarly, in Abrego v. Moniz, 2006 ONCJ 500, 35 R.F.L. (6th) 460, Justice Maresca ordered supervised access to the child on Saturday for a period of two hours at an access program and that the mother obtain counselling to assist her in accommodating the relationship between the child and the father. In this case, the father had no access to the child other than through visits arranged by the investigator from the Office of the Children’s Lawyer. The report identified both parents as attentive and responsive to the child and noted the mother’s extreme emotional hostility the father.

[76] The court concluded that it would be in the best interest of the child to have the right to know her biological father and to know that he was not abandoned and that the father was committed to the child.

[77] The mother’s counsel refers to a number of cases where the court dealt with parents with mental health issues. As stated in Crozier v. Crozier, 2006 ONCJ 177, mental illness, if managed, is not a bar to custody. In Forrester v. Saliba (2000), 10 R.F.L. (5th) 34 (Ont. Ct. J.), the court found that the father who had suffered from an episode of depression was statistically more like to become depressed in the future, but the child was not at risk with the father as he was willing to seek medical attention if the symptoms of depression reoccurred.

[78] In Forrester, the court noted that the mother had also suffered from depression including a suicide attempt, but that her illness was in remission.

[79] In Green v. Cairns (Ont. S.C.), at paragraph 14, Justice Wood reiterates the following:

There is a well-founded reluctance on the part of Courts to vary interim orders on an interim basis. In custody and access cases as this, an interim variation of an interim order may well substitute one routine to which a child has become accustomed for another, only to have first or even a third substituted at trial. For this reason, an interim order should only be varied on an interim basis if the evidence establishes clearly and unequivocally that the present arrangement is not in a child’s best interest and the proposed arrangement would be.

Analysis

[80] The child is doing well and states that he wants to continue living half-time with each parent.

[81] There have been no incidents of alcohol excess or suicide attempts. There have been no incidents that have placed V.S.G. at risk since the November 2013 incidents.

[82] The mother indicates that she has continued counselling and is seeing someone on a monthly basis.

[83] The child is doing well in both parents’ care.

[84] There are no exceptional circumstances that require a change of the parenting arrangement.

[85] The mother has provided notes from counsellors and doctors that demonstrate the efforts she has made to deal with the mental health breakdown of November 2013.

[86] The court is entitled to review the status quo and determine whether the current arrangement continues to be in V.S.G.’s best interests.

[87] The father has not satisfied me that there has been a material change of circumstances.

[88] What is being proposed by the father is a drastic change to the schedule enjoyed by V.S.G. for the past 1.5 years.

[89] The father is requesting that we implement the report without cross-examination of the assessor, and the mother has indicated that she will be proceeding with a critique of the report.

[90] The court is also mindful of the cases that allow both parents reasonable access when embarking on the trial route.

iii) What is the amount of child support payable?

[91] The parties continue to enjoy a shared parenting arrangement for V.S.G. and hence s. 9 of the Guidelines apply. Both parties have suggested that the court use the set off amount if the court did not change the custodial arrangements.

[92] Upon reviewing s. 9 of the Guidelines and considering Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, the court must consider all factors set out in s. 9. Having considered the parties’ financial statements, the needs of the child, the few activities that the child has enrolled in (paid for by the father), the fact that the father has another child to support, and the mother now has a full time job, the court considers that the use of the set off amount in these circumstances is a fair and reasonable approach in determining the appropriate child support for V.S.G. on an interim basis.

[93] Therefore, the court finds the set-off amount an appropriate amount of child support. Commencing January 1, 2016, the father will pay child support to the mother in the amount of $809 per month.

iv) Who should be financially responsible for the cost of Dr. Smyth’s assessment?

Father’s position

[94] The father paid $8,300 for Dr. Smyth’s assessment. He states that the impetus for this report was concern over mother’s mental health issues and substance addiction.

[95] Given the findings of the assessor, he believes that the mother should pay for all, or at least half, of the cost of the assessment.

Mother’s position

[96] The mother states that she is financially strapped and cannot afford to contribute to the assessment.

[97] She states that she has minimal income and, given the father’s significant income, he should bear the cost. If she were to contribute to the cost, it would affect her financial ability to cover her living expenses, which including meeting V.S.G.’s financial needs.

[98] She refers to the Children’s Law Reform Act, s. 30, which states that the court has the power to relieve a party from bearing the cost of an assessment if it would cause financial hardship to that parent.

Analysis

[99] The assessment was conducted to determine the child’s best interests. The court is aided by independent assessment which highlights the parenting capacities of both parents and determines the needs of the child.

[100] Here, the father is correct that he was determined to be the best parent for V.S.G. at this time.

[101] Nevertheless, the parties are in a custody battle and have decided to litigate the issue of the parenting arrangements for their 10 year old son. Custody litigation comes at a cost. That cost, which provides for a third party report conducted on consent, should be shared equally by both parties.

[102] Upon reviewing her financial statement, I note that the mother has now improved her financial situation in that she now has full-time hours. By virtue of this order, she will also be receiving tax-free child support of $809 per month.

[103] There are no extraordinary or inordinate costs for V.S.G. whether occasioned by activities, dental or medical needs.

[104] Both parties should bear the burden of an assessment that was commissioned to deal with an issue that the parties are litigating.

[105] The mother can contribute $200 per month commencing May 1, 2016 to a total amount of $4,150.

Summary

[106] Therefore, the court orders the following:

i) the father’s motion for summary judgment is dismissed;

ii) the father’s motion for a change of parenting arrangements is dismissed;

iii) commencing January 1, 2016, the father will pay child support to the mother in the amount of $809 per month based on the set off amount with the father’s total income being $124,210 and the mother’s income being $31,000. This is without prejudice for retroactive claims;

iv) the mother will pay to the father one half of the cost of Dr. Smyth’s report at the rate of $200 per month until fully paid;

v) The father has sole discretion as to what activities he will fund for V.S.G.;

vi) This matter shall be set down for the next trial sittings which is in November 2016. Counsel is to file the trial management endorsement forms part one and part two. I will execute part two in order that this matter is placed on the next trial sittings; and

vii) On consent, any reference to the father’s employer will be redacted from the court materials as this information may pose some privacy and security issues and is not relevant to the proceedings herein. The court directs the parties to remove references to the father’s employers contained in the Continuing Record.

[107] The mother has been successful in this motion and is entitled to costs. If the parties cannot agree on quantum, they can address the issue of costs in writing (no more than 2 pages) by April 15, 2016.

Madam Justice A. Doyle

Released: April 01, 2016

CITATION: J.S.G. v. E.M.G., 2016 ONSC 2233

COURT FILE NO.: FC-13-2811

DATE: 2016/04/01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.S.G.

Applicant

-and-

E.M.G.

Respondent

ENDORSEMENT

Madam Justice A. Doyle

Released: April 01, 2016