Court File and Parties
Court File No.: FC-16-665 Date: 2018/11/09 Court of Ontario, Superior Court of Justice, Family Court
Re: A.T., Applicant And: K.C., Respondent
Before: Mr. Justice Calum MacLeod
Counsel: Jennifer E. Jolly, for the Applicant Lauren McMurtry, for the Respondent
Heard: November 1, 2018
Reasons for Decision
[1] On October 11th, 2018 the parties argued a motion concerning a custody access assessment and the living arrangements for their child, C.B. pending the trial. On October 12th, 2018 I released written reasons which were predicated in part on the information provided to the court concerning the availability of an American psychologist to complete the assessment. 2018 ONSC 6080 It now appears that the psychologist in question misled the court when he wrote a letter undertaking to complete the assessment or else he has reconsidered his willingness to do so. In addition, the amount he proposes to charge is exorbitant.
[2] On November 1st, 2018 counsel re-attended before me so that I could review the arrangements I had ordered in October having regard to these changed circumstances. In the interim, counsel had identified and agreed upon Dr. Peter Rowe in Kingston as an appropriate person to complete the assessment and had obtained advice that Dr. Rowe could prepare a report by February 8th, 2019.
[3] It is apparent that the trial cannot proceed on the January trial list because the report will not be available until the end of the sittings even if Dr. Rowe is able to meet this deadline. February 8th is at the end of the sittings and of course it is possible there will be some unanticipated matter that causes a delay. Moreover, the parties have not agreed to be bound by the report and either one of them may wish to respond to it. There is also the matter of the outstanding request to the OCL for an updated report. Even if the parties can prevail upon the Local Administrative Justice and Regional Senior Justice to fix a trial date outside of the regular sittings, there is the question of the applicant’s current pregnancy and limitations on travelling. There appears to be no option but to adjourn the trial to the May sittings to be dealt with on a priority basis and to make it peremptory on both parties.
[4] This will have the advantage of allowing Dr. Rowe to complete his work, for each party to adequately respond to his recommendations and to allow a meaningful opportunity for the Children’s Lawyer to update her report if the OCL agrees to do so. Perhaps with the benefit of the custody access assessment, bearing in mind the best interests of the child and not just the wishes of the parents, they will be able to reach a negotiated resolution.
[5] This rescheduling of the trial changes the landscape somewhat. I am not prepared to revisit my decision concerning the living arrangements and access times for the rest of this year but my order anticipated a trial in January and not in May. I must now decide how C.B. is to be parented between January and the date of the trial and whether she should be returned to Ontario for the second part of the school year.
[6] The child is temporarily in the United States under the terms of a consent order. That order was granted at a time when it appeared the respondent could not have the child in his care and the matter was on the eve of trial. Although the order provides that the child remains ordinarily a resident in Ontario and is without prejudice, it is one thing to keep the child with the applicant in the U.S. for six months; it is another to permit that situation to continue until May.
[7] I do not propose to repeat all of the factors and considerations outlined my October decision. Suffice to say that I must now add to those, the fact that the trial will not take place until May and the fact that parenting time between the father and the child has now resumed.
[8] While I was reluctant to expose the child to additional instability, given the change of schools that had already taken place, the situation is significantly different than that which appeared to be the case in October.
[9] I am ordering that the child be returned to Ottawa and enrolled in her old school starting in January. Obviously the applicant will be entitled to as much time with the child as can be reasonably managed given the applicant’s limitations on travelling and the respondent’s current unwillingness to cross the border.
[10] The court therefore orders as follows: a. The trial is adjourned from January of 2019 to May of 2019 and shall be marked as a priority matter peremptory on both parties. b. Dr. Rowe shall be appointed to complete the custody access assessment in place of Dr. Reid. The assessment is to be completed no later than February 8th, 2019. c. Commencing in January, 2019 the child is to be returned to Ottawa and enrolled in Grade 1, French immersion at the school she attended last year. d. If the applicant returns to Ottawa then the respondent and the applicant shall share parenting time as was the case before the parenting schedule was interrupted by the criminal charge. e. If the applicant remains in St. Louis, then the child shall be in the care of the respondent in Ottawa until the trial is completed. In that case, the respondent shall arrange to return the child to the applicant at his expense for the following periods of time: i. One weekend each month; ii. One week at March break; and iii. Additional time as agreed and in particular during holidays or school breaks. f. Pick up and drop off of the child shall be in Toronto. g. The applicant shall be entitled to exercise an additional weekend each month at her expense in St. Louis or Toronto. h. The same terms and conditions as set out in the October endorsement shall apply with respect to Skype and telephone contact but in reverse. i. As the October order has not been finalized, counsel may prepare one consolidated formal order containing the terms of the October order as modified or supplemented by this order. j. All other terms of earlier temporary orders that have not been superceded remain in place.