Court File and Parties

Court File No.: FS-14-81662-00 Date: 2016 06 30 Superior Court of Justice - Ontario

Re: Alison Ruth Winn, Applicant And: Stephen John Winn, Respondent

Before: Fragomeni, J

Counsel: Self-Represented Applicant Jenna Beaton, Counsel, for the Respondent

Heard: June 28, 2016

Endorsement

[1] The Respondent father, Stephen John Winn, brings a motion for the following relief:

1. An order that the child of the marriage, Jesse Ryan Winn, born December 7, 2005, shall attend for a psycho-educational assessment, which includes assessing his social-emotional level with Parvaneh Moallef Akbari.
2. An order that, subject to the assessor’s schedule, the parties cooperate to schedule all appointments needed to complete the assessment before August 19.
3. An order that the cost of the psycho-education assessment be shared equally by the parties.
4. Costs on a full recovery basis.
5. Such further and other relief as the Court deems just.

[2] A final order was made on December 18, 2015 by Justice Seppi pursuant to Minutes of Settlement signed by the parties and dated December 18, 2015. Paragraph 13 of the said order sets out the following:

The Minutes of Settlement, and this Order, resolve all issues arising between the parties, as part of this litigation, except for the issue of Jesse’s schooling. This issue of Jesse’s public/private/home schooling may be resolved by way of a summary judgment motion to be brought by the Respondent in the week of June 13, 2016, if he so chooses.

[3] The father wishes to proceed with a motion for summary judgment for an order that the child, Jesse, born December 7, 2005, no longer be home schooled and that he be permitted to attend regular public school.

[4] The father points to the following factors in support of his position:

• he has been asking his wife, the Applicant, Alison Ruth Winn, to enrol Jesse in Public School since September 2014
• an assessment is required to determine Jesse’s educational and social development level
• the assessment will assist the court at the summary judgment motion. An independent expert psycho-educational assessment is beneficial to the court and is in no way prejudicial
• the father is very concerned that he does not have reliable information about Jesse’s academic standing, his challenges and strengths
• the father also has serious concerns about Jesse’s social development

[5] The father has made contact with Parvaneh Moallef Akbari, a Registered Clinical Psychologist. Her Curriculum Vitae is at Tab L and her letter of engagement is at Tab M and dated June 19, 2016. At paragraph one of her letter she states:

Follow up to our discussion during your initial consultation visit on June 15, 2016, based on the concerns you raised around your son’s academic and social functioning, a psychoeducational assessment seems appropriate and is recommended; the assessment can prove to be very useful in better understanding your son’s academic standing, and his level of cognitive and social-emotional functioning, as compared to other children his age/Grade; and in determining his areas of strengths and needs. I am confirming that I am qualified and willing to conduct this assessment for your child, but as previously indicated, I will need both parents’ consent to proceed with the assessment.

[6] Dr. Akbari estimates the assessment will cost about $3,000.00 (hourly rate of $200 with approximately 15 hours to complete).

Position of the Mother

[7] The mother sets out that she and her husband have always agreed that Jesse would be home schooled. The mother states that she and her husband have had numerous discussions on Jesse’s education and she has sent him progress reports throughout the 2015/2016 years. She has agreed to meet with her husband to discuss any concerns he has but he has never set a date to do so.

[8] The mother also submits the following:

• there is no reason to disrupt Jesse’s current home schooling situation and pull him away from his friends and relatives
• Jesse does not have any learning, attention, cognitive or behavioural issues
• a psycho-educational assessment is potentially emotionally damaging to a child who may think there is something wrong with him
• there are other facilities that can conduct testing for academic proficiency such as the EQAO done through the Ontario School Board
• she is supplying report cards or progress reports three times per year
• there is no evidence that Jesse’s behaviour is abnormal or that he shows any signs of any learning disability
• letters filed by those who know Jesse will confirm that Jesse is socially developed and the concerns raised by the father are not borne out

Analysis and Conclusion

[9] It is important to set out that for any future summary judgment motions, the letters filed by the mother in support of her position will have to be in the form of sworn Affidavits. A letter is not the proper form to provide the court with this information.

[10] The second point I wish to make at the outset is that the Affidavits filed by the parties are conflicting on many of the particulars set out. Without cross-examinations on the Affidavits it is difficult to resolve these conflicts.

[11] Section 30(1) of the Children’s Law Reform Act, RSO 1990 c. C.12 sets out the following:

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.

[12] The father has indicated that he will be proceeding with a summary judgment motion for an order that Jesse no longer be home schooled and that he be permitted to attend public school. His concerns are set out in detail in his June 21, 2016 Affidavit. As I indicated, the mother filed a responding Affidavit sworn June 24, 2016 and there are many conflicting statements made by the parties on the issue.

[13] On October 30, 2015 the mother’s counsel wrote to the father’s counsel and set out the following, in part:

10. Ms. Winn intends to continue to homeschool Jesse as discussed and agreed upon between Mr. and Ms. Winn during their time together. Mr. Winn was most anxious that Jesse receive homeschooling and Ms. Winn continues to be of the view, and Mr. Winn was of the view that Jesse would be receiving a better education through homeschooling. Mr. Winn has been receiving school reports for Jesse and he has been advised by Ms. Winn that he my email her at any time with any questions with respect to the education being received by Jesse. The most recent report provided to Mr. Winn, with respect to Jesse was sent October 23, 2015. There is an arrangement in place as between Mr. and Ms. Winn, by which Ms. Winn will send to Mr. Winn school progress reports three times per year, the same as he would have received, if Jesse was attending public school.

We thank you for your request with respect to the psycho education assessment. Our advice is that psycho educational assessment may be appropriate if a child is suspected of having ADHD, CAP, or specific learning disabilities. Please note that Jesse does not have ADHD, CAP, and he does not have any learning disabilities. Jesse is bright, intelligent, and is learning at his appropriate level. The testing which you have proposed is long, involved, and should not be undertaken unless there is a real issue with respect to the child. In addition, the cost will be in excess of $2,000.00.

In all of the circumstances, a psycho educational assessment is not advised and is not appropriate.

We trust that this is satisfactory. However, if you require anything further, please be kind enough to advise.

[14] On April 25, 2016 counsel for the father wrote to counsel for the mother as follows, in part:

Mr. Winn has questions and concerns regarding his academic, cognitive and social development skills. We have made repeated requests for this information and received no response. As you know, we intend on bringing a summary judgment motion in June to address Jesse’s schooling. Your client’s unwillingness to share information and allow Jesse be tested in advance of the motion raises concern for us. We will be asking the Court to draw an adverse inference from your client’s refusal to cooperate and provide information.

[15] In Linton v. Clarke, [1994] O.J. No. 2999, the Court set out the following at paras. 13 and 14:

13 Assessments should not be ordered in all cases as a vehicle to promote settlement of custody disputes. If the legislature had intended that assessments were to be a vehicle to settle custody disputes, the legislation would have mandated assessments in all cases.

14 In my view, assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody. The decision of Justice Jenkins is in harmony with the principles I have enunciated. I agree with his decision to dismiss the motion for an assessment at this time.

[16] In Kramer v. Kramer, [2003] O.J. No. 1418 the Court noted the following at paras. 32-37:

B) THE LAW

32 Section 30(1) of the CLRA states, in part, "The court ... 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."

33 The Divisional Court in the case of Linton v. Clarke, 21 O.R. (3d) 568 wrote at page 6 of the decision, "In my view, assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody."

34 If this statement means that an assessment may only be ordered where there is evidence of some psychological or emotional stresses, then I disagree with the court in Linton. Even if I could precisely define the words "clinical issues" I would not give s. 30 such a narrow interpretation. There is no such restriction contained in the words of s. 30 of the CLRA.

35 I agree with the proposition that assessments under s. 30 should not be routinely ordered by this court, as discussed in Linton. However, overall I prefer the approach taken in the case of Parniak v. Carter, [2002] O.J. No. 2787 where J. Kukurin wrote at page 7, "Although assessments should not be ordered in every case, neither should they be limited to those cases where "clinical issues" are involved. In the absence of specific statutory criteria, the court has to weigh the factors in any particular case in deciding whether an assessment report should be prepared. Delay occasioned by the report may be a factor in the decision. Certainly, a judicial estimation of whether a case is not bona fide or extremely tenuous may contra-indicate an assessment."

36 In my opinion, s. 30 is a legislative tool that, in the proper case, may assist the court in making a decision. As such, s. 30 should be given a broad interpretation. An assessment under s. 30 should be available to the court in any case in which there is a custody or access issue before the court. However, this does not mean that the assessments should be routinely ordered. In my opinion an assessment should only be ordered where an assessment is reasonably necessary to assist the court in determining the issues that are before the court. If, on all of the evidence, a court is in a position to reasonably decide the issues without the assistance of the assessment then the assessment should not be ordered.

37 Moreover, in considering whether or not to order an assessment, the court must also weigh the anticipated benefits that would flow from the assessment report against the negative effects that the parties and the children would suffer if they were compelled to go through the assessment process.

[17] Guided by these legal principles I am satisfied in all of the circumstances that the father’s request is reasonable and ought to be granted.

[18] As I indicated, the Affidavits before me at this motion are conflicting. Although cross-examinations will in all likelihood take place before the summary judgment motion is heard, the position of the parties will still be in conflict. It is my view that the justice hearing the summary judgment motion will benefit from an independent expert report. It is acknowledged of course that the motions justice will not be bound by any recommendations made, however, the report will be of assistance to the court. The anticipated benefits of the assessment outweigh any negative effects that Jesse might experience in the process. The mother’s concerns that Jesse might think there is something wrong with him if he is assessed is speculation. I am confident that Dr. Akbari will conduct her assessment in a professional manner.

[19] In his October 30, 2015 letter, the mother’s counsel notes that a psycho-educational assessment may only be appropriate if a child is suspected of having ADHD, CAP or specific learning disabilities. I do not agree with that characterization of when an assessment would be beneficial to the court. Kramer sets out clearly that assessments should not be limited to only those cases where “clinical issues” are involved. Kramer also states that section 30 is a legislative tool that, in the proper case, may assist the court in making a decision and section 30 should, therefore, be given a broad interpretation.

[20] It may very well be that the concerns raised by the father are not borne out in the assessment. If that is the case, then at least the father’s concerns will have been addressed and the mother’s position will have been supported.

[21] On the other hand, if issues are identified it will allow the parties an opportunity to deal with those issues, always keeping in mind the best interests of Jesse.

[22] The mother submits that she is in a difficult financial situation at this time and is not able to contribute to the cost of the assessment. I agree with her position on that issue and will therefore order that the father pay for the assessment. This will be without prejudice to the summary judgment motion justice revisiting the issue of the costs of the assessment after a determination is made on that motion.

[23] Order to issue as follows:

1. that the child of the marriage, Jesse Ryan Winn, born December 7, 2005, shall attend for a psycho-educational assessment
2. the psycho-educational assessment shall be conducted by Parvaneh Moallef Akbari and will address Jesse’s academic standing, cognitive and social-emotional functioning and determining Jesse’s strengths and needs
3. the parties shall co-operate with the assessor to schedule all appointments needed to complete the assessment before August 19, 2016
4. the cost of the assessment shall be the responsibility of the father, Stephen John Winn. This will be without prejudice to the summary judgment justice determining whether the mother should be responsible for payment toward the cost to a maximum of $1,500.00 for her share.

[24] It is my preliminary view that costs of this motion ought to be reserved to the justice hearing the summary judgment motion, however, if the parties wish to make written submissions on the costs of this motion they may file written submissions on costs within 20 days.

Fragomeni J Date: June 30, 2016