Court File and Parties
COURT FILE NO.: FC-16-519 DATE: 2017/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cheryl Margaret Religa, Applicant AND Jeffrey Moss Nesrallah, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Beverly Johnston, Counsel for the Applicant Julie Guindon, Counsel for the Respondent
HEARD: In writing
Endorsement
[1] The Court rendered a temporary order dealing with parenting of the parties’ 14 year old son, Kent. On an interim basis, the Court made no order as to custody but ordered this issue could be revisited upon the completion of the Voice of the Child Report (VOC report). If the parties could not agree on who would be retained to prepare the VOC report, they were to provide written submissions along with relevant Curriculum Vitae.
[2] Having considered the parties’ submissions and for reasons set out below, the Court appoints Janet Claridge to prepare the VOC report.
Brief Background
[3] The parties were married on January 20, 2011 and separated on June 30, 2014. The father left the matrimonial home in July 2015.
[4] An assessment dated November 2015 prepared by Valerie Morinville, recommended joint custody with the Applicant mother having final say on decisions in the event of a dispute. She recommended that the Respondent father would have access every Wednesday for a few hours and every second weekend with changes to be implemented if access was progressing well.
[5] Rekha Chagarlamudi, MSW, RSW a child and family therapist was involved with the family for the purpose of facilitating reunification between the father and Kent as they were struggling in their relationship. In her latest report dated January 27, 2017, she stated that there was a regression in their relationship as the father struggled to manage his expectation around his relationship with Kent and sessions were terminated as the father “was not able to recognize his role that led to the present dynamics with Kent”.
Mother’s position
[6] The mother suggests the following individuals to prepare the VOC report:
(i) Ms. Chagarlamudi: She is a Registered Master of Social Work with 15 years of experience addressing emotional and mental health needs. She had been recommended to the parties by Valerie Morinville as someone who could help the family to meet Kent’s mental health needs.
The mother submits that it would not be in Kent’s best interests to be introduced to another medical professional. Rather, it is best that he continue discussions with someone who is already in a therapeutic relationship with.
She was involved with the child and prepared two reports for the Court’s consideration.
(ii) Valerie Morinville: She would be a good second choice as she is already familiar with the parties and Kent and he has a comfort level with her as he met with her on few occasions during the assessment process. She has a MSW and experience working with families and children. Both parties had confidence in her as they mutually agreed to proceed with the assessment.
(iii) Janet Claridge: She is a very well respected MSW with over 30 years’ experience in the field of social work and working with children.
[7] The child has seen five professionals since June 2014, including Sandra Levesque, Brenda Willbond, Valerie Morinville, Jim Weiler and Rekha Chagarlamudi.
Father’s Position
[8] The father is suggesting someone neutral who is not involved in this case:
(i) Chantal Bourgeois: She is an experienced social worker who has worked with the Office of the Children’s Lawyer (OCL) and has prepared VOC reports in the past and hence will able to capture Kent’s views and preferences. She has 15 years of experience and has conducted numerous custody/access assessments.
(ii) Nadine Crawley: She is also an experienced social worker who has worked with the OCL and has 20 years of experience working with individuals and families in need. She has conducted VOC reports and specializes in loyalty conflicts between parents and children.
(iii) Janet Claridge: She has her Masters in Social Work and is a clinical investigator with the OCL and has worked as a children’s therapist with children.
[9] He submits that a new therapist who is neutral but with vast experience can guide Kent into communicating his preferences. He denies that Kent is “professionally fatigued” but even if he is, it is important that the Court appoint an expert who is a new and neutral experienced social worker.
[10] In addition, he indicates that Kent has some conflict with her current therapist and there is a current strain. There is no evidence before the Court with respect to this issue.
[11] In addition, the mother has participated in some of the sessions and is the parent who predominantly brought Kent to his appointments with her.
The Law
[12] In determining who should prepare the VOC report, the court is determining what expert should be appointed under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
(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. R.S.O. 1990, c. C.12, s. 30 (1) .
(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2) .
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4) .
(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. R.S.O. 1990, c. C.12, s. 30 (5) .
(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6) .
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7) ; 2009, c. 11, s. 13 (1) .
(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8) ; 2009, c. 11, s. 13 (2) .
(9) T he report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9) .
(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10) .
(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11) .
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12) .
(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13) .
(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14) .
(15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (15) .
[13] Rule of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”) states:
(1) It is the duty of every expert who provides evidence in relation to a case under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 383/11, s. 6.
(2) In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party. O. Reg. 383/11, s. 6.
(3) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case
(5) An order under subrule (3) appointing an expert shall contain the instructions to be given to the expert, and the court may make any further orders that it considers necessary to enable the expert to carry out the instructions.
[14] In Svirsky v. Svirsky, 2013 ONSC 5564, Justice Kiteley stated at para. 27:
I am not persuaded that Ms. Moody will be an appropriate choice. I agree that because of her pre-existing relationship with the children, that she ought not to participate. I am persuaded that I must exclude Ms. Vanbetlehem because of the professional involvement with Mr. Burke. I am very reluctant to do so because it suggests that a lawyer would be precluded from working in professional organizations with a parenting professional and then proposing that person in a specific case. That would discourage inter-professional collaboration which is critical in family law matters. In most cases, such collaboration would not provoke opposition. It has in this case. Given the time constraints in this case, I will eliminate it as a focus of concern. In future however, additional evidence about the professional relationship would be desirable in order to assess whether the objection is reasonable.
Decision
[15] The Court must determine the expert based on the best interests of Kent. It is important in situations where the Court relies on an expert, that the individual is neutral and is aware of their duty to the Court in providing evidence in a neutral and unbiased manner.
[16] The foundation of an expert’s report is that it rests on neutrality and no fear of bias or preconceived ideas. Here both Ms. Chagarlamudi and Morinville have had prior involvement.
[17] Ms. Morinville has already taken a position on the custody and access issues and has provided the Court with extensive and comprehensive recommendations. She already has opinions based on her involvement in this matter as an expert. She viewed this matter through the lens of an expert to determine what is in Kent’s best interests. In addition, she has not conducted a VOC report in the past. In my view, it is not prudent to now ask her to review and investigate the matter dealing with only Kent’s views and preferences.
[18] Ms. Chagarlamudi’s role in this file was to deal with the father and son relationship and trying to reintegrate them and work on their relationship. Her extensive involvement has shaped her ideas and beliefs regarding the various dynamics and relationships that interplay here. She has rendered opinions in this matter. For example, she has already negatively commented on the father’s inability to take responsibility in his relationship with his son. The Court also notes that the father has not participated as extensively as the mother in the therapy sessions recently. Again, it would not be prudent to ask her now to deal with only Kent’s views and preferences.
[19] The Court finds that it is in the best interests of Kent that a neutral third party be appointed to speak to him about his views, even if it means that he has to meet another professional.
[20] Both parties have suggested Janet Claridge as one of their choices. She has expertise in this area and is an investigator with the OCL. In her email filed, she has confirmed her consent to prepare a VOC report.
[21] Her CV indicates that she obtained her Masters of Social Work in 1986 from the University of Toronto and her Bachelor of Social Work. She has had a private practice from May 1995 to present in mediations, consultation, parenting coordinator, parent-child reunification counselling, voice of the child reports, and assessments with families seeking assistance regarding their separation and divorce.
[22] She has been a clinical investigator since May 1991 where she has completed assessments and held disclosure meetings and has assisted children’s lawyers in bringing forward the views and preferences of the children within the context of the family situation.
[23] She was a children’s therapist from November 2012 to November 2015. She also worked briefly with the Children’s Aid Society of Metro Toronto and Catholic Children’s Aid Society of Metro Toronto.
[24] Clearly, Ms. Claridge has extensive experience dealing with children and youth and separated families. She has been trained to be attuned to the sensitivities of youth and children caught up in conflict and hence the Court is confident that she will be able to develop a relationship with Kent in order to determine his views and preferences.
[25] Therefore, the Court orders as follows:
(i) Janet Claridge will complete the VOC Report.
(ii) The parties will equally share the cost of her services and equally pay a retainer in the amount of $600 each/
(iii) Ms. Claridge will meet with the child at least twice. Each party will bring the child in for an interview.
(iv) The parties will cooperate with her with respect to her attendances, meetings requested and any documentation that she wishes to review.
(v) Her report will be filed with the clerk of the Court and a copy of the report will be provided to each of the parties.
[26] This matter will be case managed by me. The next date must be set before me through the Trial Coordinator’s Office. The Settlement conference scheduled for March24, 2017 is adjourned as it is premature to hold a meaningful discussion at a conference pending the receipt of the VOC report.
[27] There will be no costs ordered on this issue.
Madam Justice A. Doyle Date: 2017/03/06