CITATION: Kilby v McMillan, 2017 ONSC 5866
COURT FILE NO.: 16-95
DATE HEARD: September 22, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kilby v McMillan
BETWEEN: Kerrie-Anne Carmel Kilby, Applicant and Chad Robert John McMillan, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Mr. P. Sammon for the Applicant
Mr. Cecil Lyon for the Respondent
ENDORSEMENT
[1] The respondent father makes this motion for an order directing the applicant to cooperate with the preparation of an update to the Custody/Access Assessment (CAA) prepared by Valerie Morinville in January, 2017 and to share the estimated $3,000 cost of same.
[2] This proceeding is scheduled for trial on or about October 23, 2017.
[3] The application was previously scheduled for trial in May 2017 but was adjourned at the request of the applicant.
[4] The circumstances of the adjournment are relevant here. A settlement conference was held on January 27, 2017, not long after CAA was served. The applicant was critical of the report and alleged that it was deficient. The respondent retained Dr. Alex Weinberger following the settlement conference to address what the respondent referred to as the applicant’s “unspecified and generalized concern” regarding the shared parenting regime recommended by Ms. Morinville. Dr. Weinberger did not perform an assessment nor did he meet with the parties or the children. He said he had been asked to provide an opinion of the appropriateness of a shared parenting arrangement for children “such as the ones in (this) family”. The report discussed the role of attachment in the psychological development of children. Significant caveats were attached to the report in that Dr. Weinberger noted that his commentary was not intended to suggest that there be one outcome or another for (this) family and that any particular case depended on the specific facts.
[5] Dr. Weinberger’s report was dated March 28, 2017. It is not clear when it was served but it became the basis for a request by the applicant at the Trial Management Conference on April 25to adjourn the trial. The applicant said she needed time to consider the report and obtain a response. The Trial Management judge granted the adjournment and directed that a further trial management meeting be convened upon receipt of the report. In fact the applicant never obtained a report responding to Dr. Weinberger’s commentary.
[6] The position of the respondent father is that an update is appropriate and can be performed in time for the trial. As for the timing of the request, the respondent says the applicant has consistently failed to respond promptly or not at all to reasonable requests by the respondent and this has caused delay over the course of this litigation.
[7] In addition, the respondent contends that the applicant should be required to pay one half of the estimated $3,000 cost of the update.
[8] The respondent also seeks an order requiring the applicant to sign consents to facilitate the release of educational and medical records.
[9] The position of the applicant is that there is no point to obtaining an update to a fatally-flawed assessment and the respondent should not be given an opportunity to rehabilitate it. She is concerned that it may delay the upcoming trial. She notes that the respondent failed to pay child support for May and July 2017 for a total of $3,400 but paid $2,000 on September 5, 2017 towards the costs awarded in her favour from the motion in June 2017. The applicant says that the respondent paid the costs order but not the child support arrears in order to set up his entitlement to bring this motion.
[10] On this last point, generally speaking, a creditor is entitled to allocate a payment to whatever outstanding debit item the creditor wishes, irrespective of the request of the debtor. There is an arguable basis to contend the costs remain unpaid because the applicant was entitled to treat the $2,000 payment as a credit to the older outstanding child support arrears. A notation on the payment instrument by the debtor is not necessarily determinative of the account to be credited.
[11] Finally, the applicant resists signing the requested consents for the release of the children’s records, saying it is unnecessary.
[12] In my view the paramount consideration is the importance of this proceeding going to trial as currently scheduled, with or without an update to the CAA. It would be a disservice to the children to leave the case unresolved until the next sittings in the spring of 2018.
[13] I note that the issue of an update to the CAA was raised in the Notice of Motion in June but I do not recall it being addressed at the hearing of the motion. It was then permitted to linger unresolved for about 2 months. This delay is a concern.
[14] At the same time, I do not accept the applicant’s contention that there is no benefit to updating the report because of underlying, fatal flaws. Also, I do not accept that the update should be refused because the author may seek to buttress her previous recommendations. These contentions can be explored with the assessor at trial.
[15] The practice of obtaining updates of previous reports is common. It may be that this update will provide some assistance to the court or facilitate focused settlement discussions by the parties. The assessor is ready and able to prepare an update. I assume the assessor is aware that this matter is scheduled for trial in a few weeks. On the issue of timing, I note that the Family Law Rules provide that supplementary reports are due at least 30 days before the commencement of trial. Compliance with this rule will be impossible.
[16] I note as well that the respondent is not only requesting the applicant’s cooperation in the preparation of an update but also seeks an order requiring the applicant to pay half the costs as well. This was not the case with the initial report which was paid for by the respondent with ultimate responsibility for the cost of its preparation being reserved to a later date on consent.
[17] Balancing these various submissions and factors, I am persuaded that the applicant ought to be required to cooperate in the preparation of an update to the CAA. The cost of the update shall be paid by the respondent who has requested it. The update shall be supplementary to the initial report and is to be limited to developments since the initial report was released.
[18] In making this order I would emphasize that the admissibility of the update shall be a matter for the trial judge to determine because at this time I am unable to predict when it will be served in relation to the commencement of trial or to assess its potential impact on the management of the trial.
[19] On the issue of the consents to release records, the applicant shall execute the consents and deliver same forthwith to counsel for the respondent.
[20] The matter of costs will be dealt with in a separate endorsement.
James, J.
DATE: October 2, 2017
CITATION: Kilby v McMillan, 2017 ONSC 5866
COURT FILE NO.: 16-95
DATE HEARD: September 22, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kilby v McMillan
BETWEEN: Kerrie-Anne Carmel Kilby, Applicant and Chad Robert John McMillan, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: M. Peter Sammon for the Applicant
Cecil Lyon for the Respondent
ENDORSEMENT
James, J.
DATE: October 2, 2017