Court File and Parties

COURT FILE NO.: FC-15-1278 DATE: April 19, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bei Wang, Applicant AND: Frederick Grenier, Respondent

BEFORE: MASTER MACLEOD

COUNSEL: Tanya C. Davies, for the Applicant, Moving Party Jack E. Pantalone, for the Respondent, Responding Party

HEARD: April 19, 2016

Endorsement

[1] The applicant wishes to bring a motion pursuant to Rule 14 (1) (3) to change the temporary order made by Justice Parfett in July of 2015. The next regularly available date for a long motion is June 30th, 2016. The applicant appeared at procedural motions court this morning seeking a declaration of urgency and a direction to the trial coordinator to assign an early hearing date. In simplest terms the applicant sought to expedite the motion. In doing so she sought priority over other cases on the basis that the best interests of the child demanded an earlier hearing than the end of June.

[2] The respondent opposed the granting of an urgent motion date on various grounds. As the materials were voluminous and because it was a busy docket, at the close of argument I directed counsel to secure the date of June 30th. I indicated I would review the file further and advise counsel if I felt it appropriate to make an order for the motion to proceed on an earlier date.

[3] For the reasons that follow, I decline to order an expedited hearing. The motion is adjourned to June 30, 2016 or such other date as the parties may agree upon. Leave is granted for questioning including questioning of Sally Bleecker should that be necessary. This does not relieve either party from the obligation of complying with rule 20 or bringing the necessary motion on notice to Ms. Bleecker if she does not wish to submit to questioning voluntarily.

Background

[4] Briefly by way of background, the subject matter of this application other than the divorce and financial issues is a disagreement about the appropriate parenting regime for a young child, Maxime Grenier born July 15, 2013. The matter was first brought to court in June 2015 with an urgent motion. Ultimately the motion was resolved through a consent order granted in July 2015. That order by Justice Parfett revised the temporary parenting schedule put in place by Master Roger in June and ordered a custody access assessment by Sally Bleecker. The terms of both the June and July orders were set out in minutes of settlement.

[5] Pursuant to the July order, Ms. Bleecker was retained by the parties and she began her work on August 18, 2015. The custody access assessment was recently completed and a 25 page report was delivered to the parties on March 17, 2016.

[6] It is fair to say that Ms. Bleecker is very concerned about the stress the parents are inflicting upon the two-year-old child. In her view the parents have been in “high conflict mode and not able to cooperate for 10 months”. She views their personalities as “polar opposites”. While she views both parents as “well intentioned concerning their son”, she also categorizes them as “highly competitive”. She views the father as emotionally fragile and overly sensitive. She views the mother as intensely demanding and somewhat aggressive when she is upset. She anticipates the parties will require the use of tools such as therapy, mediation, and parenting coordination. She hopes that over time the parents’ “common sense will prevail”.

[7] At page 18 of her report Ms. Bleecker expresses the view that the “decision to go to a week on and off schedule to accommodate both the fathers panic at having to face the mother at pickup and drop-off times and the mother’s upset and at times angry responses was not in the best interests of this child at that time”. She views the initial schedule which the parties had agreed to “of the child not to be away from either parent for more than two or three nights as more age-appropriate”. She is also critical of the way in which extended family became involved as reinforcements and of the rush to involve lawyers. She views the mother’s insistence on therapy for a child who is just verbal to be self-defeating as it has become “just one more thing for the parents to argue about”.

[8] The preceding paragraphs are not intended to do justice to the entirety of the report but simply to reflect the nuanced and contextualized findings and recommendations. A custody access assessment is of course a tool to assist the parties and the court to find an optimal resolution which operates in the best interests of the child. Ms. Bleecker is highly respected for her skills in this area but like any expert her views and opinions are not determinative nor are the parties required to agree with them.

[9] At the bottom of page 19 of her report is a paragraph which is used by the applicant to justify the need for an urgent motion. In that paragraph Ms. Bleecker states that “Maxime urgently needs the process of being away from his mother’s care and home for seven full nights to slow down in order to reset his sense of security”. She opines that his “development and attachment process were interrupted”. She writes that “all indications point to his need to have his primary care with his mother for an adjustment period” and the equal importance for him to have “the huge tense wall of suspicion and mistrust between his parents to be dissolved”.

[10] There follows six pages of recommendations. Included in those recommendations is the proposed access schedule which Ms. Bleecker suggests should be in place until Maxime reaches the age of four. This recommendation does not stand alone. There are specific recommendations for summer access, holiday access, and communication between the parties, travel with the children, medical decision-making, educational decision-making, recreational activities, religion and daycare.

Analysis & Decision

[11] First and foremost, the use of the word urgently in one paragraph of the 25 page report does not make the case that the motion should be expedited and given priority over other matters now scheduled before the court. Secondly the expressed urgency must be read in the context of the entire report and the fact that the parenting regime has now been in place since July of last year. A motion date at the end of June to determine if there should be a change to the temporary order is not outrageous.

[12] Thirdly the respondent requires time to prepare for the motion. The respondent wishes to challenge some of the findings in the report and takes issue with some of the methodology. The respondent seeks access to Ms. Bleecker’s file and notes and to the records of the children’s aid society. Up until recently this was opposed by the applicant and indeed there was a motion for production also returnable today although it was not necessary to argue it. Counsel also wishes to question the applicant and the assessor. All of this will take time in order to ensure due process.

[13] The evidence does not persuade me that the parenting schedule which has now been in place for nine months is so intolerable for the child that it demands an accelerated motion date. In Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (S.C.J.) Justice Mackinnon was faced with a motion much like that the applicant now wishes to bring. In that case also the expert assessor had a sense of urgency for the children and indeed he was recommending an immediate move to full time residence with the father. The court decided that the assessor’s conclusions could not be weighed by the court until certain factual and credibility issues were determined. Hence the court refused to give effect to the conclusions of the expert at that stage of the proceeding. This is not an invariable rule of course. Such a motion may be successful if the court is persuaded that the best interests of the child require a change prior to trial. See for example Marcey v. Belmore 2012 ONSC 4696 and Bos v. Bos 2012 ONSC 3425 though both of these cases also recognize that interim implementation of an assessor’s recommendations should not be routine.

[14] There is no guarantee that an earlier date will result in a positive result for the applicant. To the contrary if the respondent is deprived of the opportunity to properly challenge the report, the motion may prove to be premature as was the case in Grant, supra. It also appears to me most unfortunate for the parties to immediately gear up for a highly adversarial expensive and complex motion as the first response to this report which has only just been received. It is not necessary for either party to accept every recommendation and conclusion made by the assessor of course. On the other hand a period of reflection and soul searching might be in order. The assessor is crystal clear in her observations that the high degree of conflict between the parents is not only dysfunctional for them but is highly detrimental to the child at an important stage in his development. This will not be aided by speeding up the motion.

[15] In Rosen v. Rosen, [2005] O.J. No. 62; 2005 CarswellOnt 68 (S.C.J.) Justice Wildman suggested a framework for analyzing urgency. Although Rosen was cited to me by counsel and is often relied upon along with Hood v. Hood cited therein, it is not directly applicable to this request. This is because those cases deal with the criteria for granting leave to bring a motion in advance of a case conference pursuant to Rule 14 (4.2).

[16] No rule deals directly with a request to expedite a hearing. The court has the inherent power to do so under its general authority to manage its own process and in family law cases that discretion is shaped and guided by Rule 2 including the primary objective and sub rules (3) – (5).

[17] I find the principles in Rosen are nevertheless instructive. Firstly urgency must be measured relative to the direst of cases such as abduction, threats of harm or dire financial circumstances. Secondly urgency must be viewed in context relative to the availability of dates. Currently in Ottawa regular motion dates are available at the beginning of June and long motion dates are available at the end of that month. The parties have already determined that June 30th is an available date. Thirdly the court expects the parties and their counsel to make genuine attempts to avoid urgency by at least agreeing on pressing matters until the next available date. There is no evidence of any attempt at compromise pending the return of the motion. In addition the parties appear to have fixated on the recommendation relating to parenting time without also considering the myriad of other recommendations made by the assessor.

Disposition

[18] In conclusion, the request to expedite the motion as a matter of urgency is denied. The motion is adjourned to June 30th, 2016 or such other date as the parties may agree upon. Leave is granted for questioning pursuant to rule 20. This will include leave to question the assessor if she is prepared to submit to questioning and if she is not then the party wishing to question her will have to bring the necessary motion on notice to her.

[19] Counsel are to immediately confer with respect to any additional material they expect to rely upon and are to make genuine efforts to agree on a timetable for exchange of that material. If they cannot agree then I may be spoken to and a timetable may be ordered.

Costs

[20] The motion to expedite the hearing has been unsuccessful but as I did not hear submissions on costs and I am not aware whether there were offers to settle or other factors to be considered, costs of today are reserved to the motions judge.

Master MacLeod