Closner v. Closner, 2018 ONSC 7130

COURT FILE NO.: FS-17-00416379

DATE: 20181129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Neil Closner

Applicant

– and –

Sherri Lavine Closner

Respondent

Gary Joseph and Stephanie Timerman, for the Applicant

Jaret Moldaver and Jesse Rosenberg, for the Respondent

HEARD: November 22, 2018.

shore, j:

1This was a motion brought by the Applicant Father, Neil Closner (hereinafter “Mr. Closner”) to vary the temporary Order of Justice Croll, dated June 22, 2017, and specifically the parenting schedule for the child of the marriage, namely Quinn Closner, born December 25, 2013 (hereinafter “Quinn”). The Respondent Mother, Sherri Lavine Closner (hereinafter Ms. “Lavine”) brought a cross-motion asking for an order dismissing the Applicant’s motion and for an order maintaining the current schedule or, in the alternative, an Order implementing “Phase 1” of the recommendations of Howard Hurwitz, set out in his Custody and Access Assessment Report, dated April 18, 2018 (hereinafter “the assessment report”). Both parties were also asking for relief related to counselling for Quinn as well as an order for telephone/Face-time.

Background:

2The parties were married on May 8, 2011. They disagree on the date of separation, which seems to have taken place on either September 4, 2016 (according to the Applicant) or February 4, 2017 (according to the Respondent). They have one child of the marriage, namely Quinn Closner, born December 23, 2013. Following separation, the parties continued to reside in the matrimonial home, and ended up in a nesting arrangement, whereby Quinn remained in the home and the parties rotated according to a residential schedule. The nesting schedule ended abruptly in March 2017, upon the parties’ return home from a trip to Mexico. These proceedings were commenced in March 2017 and the continuing record has swelled to 11 volumes since that time, with several court attendances.

3The relevant procedural background has already been set out at paragraphs 1-7 of Justice Croll’s Endorsement on Costs, dated August 28, 2017.

4On June 22, 2017, Justice Croll released an Endorsement containing a without prejudice temporary residential schedule for Quinn. The residential schedule was as follows:

o Quinn shall have her primary residence with Ms. Lavine, in the matrimonial home, with access to Mr. Closner as follows:

• Week 1: Wednesday from after school (or 4 pm when Quinn is not in school) to the start of school on Friday morning (or 9 am when Quinn is not in school);

• Week 2: Monday from after school (or 4 pm when Quinn is not in school) to the start of school on Tuesday morning (or 9 am when Quinn is not in school) and Friday from after school (or 4 pm when Quinn is not in school) until 7:30 pm on Sunday; and

• Equal sharing of all holiday time.

5Justice Croll also ordered a Section 30 Assessment. The Order states that “The parenting schedule set out above may be reviewed following the completion of a Section 30 Assessment Report.”. In the Endorsement, Justice Croll held that it would be helpful to have the results of the assessment as well as questioning on the affidavit material in order to properly decide the motion. The motion before me arises out of this Order. Now that the assessment report and questioning have been completed, Mr. Closner is asking that the residential schedule be reviewed.

Analysis

Changing a Temporary Order Pending Trial:

6The parties agreed that because Justice Croll invited a review on receipt of the assessment report, there is no need to find that there has been a material change in circumstance. Given that the order they are seeking to change involves the residential schedule of the child, the law would not have required a finding of a material change in circumstance in any event. The question here is what test needs to be met, if any, to change the temporary residential schedule? The law in this area was clearly set out by Justice Henderson in Calabrese v. Calabrese, 2016 ONSC 3077 at para.27:

I find that there must be some compelling reasons for a court to change an existing temporary custody/access/parenting order prior to the trial. However, unlike other types of motions to change, it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to a strict material change in circumstances test. The overriding principle in all custody/access/parenting proceedings, whether final or temporary is that a court should make an order that is in the best interests of the child.

7In M.D. v. N.J., 2016 ONSC 6058, at paragraph 24, Justice Henderson concluded that “temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interest of the child”. However, in that case, the trial was scheduled to take place within a few months.

8Both parties rely on the decision of Bos v. Bos, 2012 ONSC 3425, in giving the Court authority to consider the assessment report but the decision is also helpful when determining whether or not to change the temporary order pending trial. The facts in Bos are similar, in that Justice Mitrow initially heard a motion for custody and access and in making the initial order, the parties were invited to bring a further motion “after the release of Dr. Sudermann’s assessment”. Justice Mitrow heard the subsequent motion simply based on the fact that the parties were now in receipt of the assessment report. As in Bos, the initial temporary order of Justice Croll was made pending the assessment report and until questioning could take place. It was clearly not intended to last until trial. In any event, as set out in my reasons below, I find that there are compelling reasons to change the current schedule, having regard to the best interests of the child.

9As much as I would have liked to push the custody and access issues ahead to trial to give the parties some finality, the parties have already bifurcated one of the issues, namely the date of separation, which will be proceeding to trial first. The primary objective requires me to consider saving expense and time as well as “giving appropriate court resources to the case while taking account of the need to give resources to other cases”¹. Bifurcating another issue is simply going to prolong this litigation and increase costs for the parties.

Should Quinn’s Residential Schedule be Varied?

10Although the parties have very different versions of events they do agree on a few critical points:

1. The focus should be on the best interest of the child.

2. They have each previously acknowledged that the other is a good parent (although they may be expressing concerns now).

3. This is a high conflict case.

4. The parties are not able to communicate with one another.

5. They each have concerns that the other parent is talking poorly about him/her to Quinn, and are consenting to an order restraining either party from speaking poorly about the other in front of Quinn. The fact that they need an order for this purpose is telling in and of itself.

6. They have very different parenting styles.

7. Quinn would benefit from reduced conflict.

8. The current status quo has done nothing to reduce the conflict. In fact, each party has suggested the other party is responsible for increased conflict since the release of the assessment report. In his assessment report, Mr. Hurwitz also observed that “both parents were doing things to contribute to escalating the conflict instead of diminishing it”.

11I accept their submissions.

12The parties have now participated in a Section 30 Assessment. To what extent can I rely on or consider a Section 30 custody and access assessment (and the recommendations) on an interim motion?

13In Marcy v. Belmore, 2012 ONSC 4696, Justice Pazaratz cautions against relying on untested professional reports at a motion or even implementing some of an assessor’s recommendations on a temporary basis [par.16] and specifically that the court should exercise “great caution in relying on the untested observations and recommendations of an assessor” where custody or access are an issue [par 20]. However, cases (such as Bos) have drawn distinctions between observations and evidence, as opposed to conclusions of the assessor. Ultimately, Justice Pazaratz does rely on the observations and undisputed facts in the report, along with the evidence of the parties, to conclude that a change to the residential schedule is required [para 29].

14As mentioned above, both parties relied on the case of Bos v. Bos, as authority to consider the observations set out in the assessment report of Howard Hurwitz. Justice Mitrow, at paragraph 24 states that the “court has a duty to make an order in a child’s best interest and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.”. I will therefore consider the observations of Mr. Hurwitz, given that there is little third party evidence on which to rely (despite the parties having each filed numerous third party affidavits). As counsel both argued during the motion, most of the evidence provided by the parties can be summarized as “he said/she said”.

15As Mr. Hurwitz observed during the assessment (and seems to be supported by the evidence provided by each party), “their anger and frustration with one another is causing them both to disengage from parenting together and is causing increased stress for themselves and their daughter”. At an absolute minimum the schedule needs to be revised so that the transitions take place at school/daycare as much as possible, and the interaction between the parties is minimized as much as possible. Transitions are creating increased stress for Quinn.

16There is no real concern about the parenting of the parties. Both parents are good parents to Quinn. This was further supported by the observations of Howard Hurwitz as set out in the assessment report. By way of example, starting on page 32, he observes the following with respect to Mr. Closner:

1. The quality of interactions between Mr. Closner and Quinn was very good.

2. Mr. Closner was very nurturing with her throughout the visit.

3. Mr. Closner was also very responsive to Quinn’s needs.

4. Quinn responded well to her father.

5. Mr. Closner is able to manage Quinn’s behavior appropriately and set clear limits.

6. He has very good parenting skills and related well to her….there was nothing problematic that occurred in his interaction with her or which would be deemed to be problematic from a parenting perspective.

17Likewise, Mr. Hurwitz was also very complimentary to Ms. Lavine, when he writes about his observations of her parenting skills, starting at page 28:

1. The quality of interaction between mother and daughter was good.

2. Ms. Lavine’s ability to guide, direct, support, control, nurture and discipline Quinn was also good.

3. In summary, Ms. Lavine interacted calmly with Quinn. Quinn responded well to her.

4. The type of relationship between Quinn and her mother was calming and engaging.

18Mr. Hurwitz did express some concern with each of the parents, but nothing significant enough to cause concern about their ability to parent Quinn. Ms. Lavine’s materials relied heavily on the psychological report of Dr. Henderson, to express concerns about Mr. Closner’s ability to parent. However, Dr. Henderson also expressed concerns about Ms. Lavine. The law (thankfully) does not require a parent to be perfect.

19For all the reasons set above, and having reviewed the affidavit material filed, the transcripts from each party’s questioning as well as listening to a full day of submissions, I find that it is in Quinn’s best interest to change the current schedule.

Revised residential schedule:

20In summary, both parents have a close and loving relationship with Quinn. They both have good parenting skills (albeit their skills are different from one another) and they both have some areas of weakness. None of their areas of weakness cause enough concern to impact my decision on the time they should spend with Quinn. All of this has been set out in more detail above.

21However, Mr. Hurwirtz observed that both parents are capable of marginalizing the other parent in Quinn’s life, something that became evident (and concerning) to me as I listened to submissions during the motion. Further, both parties have acknowledged that this is high conflict case and they have identified the transition periods as being stressful to Quinn. The revised residential schedule needs to address these issues, as they directly affect the best interest of the child.

22These are two bright, well-educated individuals, who clearly both love their daughter. They are both good parents with no idea how their behaviour mutually marginalizes the other. They have very different parenting skills and parenting styles. Quinn will benefit from being exposed to both.

23Section 16(10) of the Divorce Act, directs the Court to give effect to “the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”. In Kennedy v. Peters-Kennedy, 2017 ONSC 7296 at par 31-33, Justice Madsen summarizes the law on maximum contact, as set out by the Supreme Court of Canada. “Parliament has indicated that maximum contact with both parents is generally in the best interests of the child”² and maximum contact should only be limited “where the contact is shown to conflict with the best interest of the child”³. I find that it is in Quinn’s best interest to have maximum contact with both parents.

24Having concluded earlier that continuing the current residential schedule is not in the best interest of the child, I have also concluded that it is in Quinn’s best interest to move to a residential schedule where she has equal time with both parents, similar to the schedule set out in Phase 2 of the assessment report. Further, there is no need to make an order with respect to custody/decision making at this time. On the facts before me, custody/decision making is an issue that needs to be addressed at trial. I have therefore accepted many of Howard Hurwitz’s recommendations with respect to the residential schedule in Phase 2, with some necessary amendments and to the extent that they are relevant. The rest of his recommendations, including those relating to major decision making, can be addressed at trial.

25In the event that it is not evident, I considered Mr. Hurwitz’s recommendations with respect to Phase 1 of the assessment report, as requested by Ms. Lavine. I find that they do not meet the concerns set out above and would not be in Quinn’s best interest at this time. Some of the concerns include, but are not limited to, the maximum contact principle and each parent marginalizing the other parent’s role in Quinn’s life. In ordering equal parenting time, I am also cognizant of the fact that Mr. Closner recently sold his business and is currently not working and is available for Quinn.

26The specific terms and timing of the schedule are set out in the order below.

Incidental Issues of the Residential Schedule:

1. Right of First Refusal

27I am not going to continue the current order for the right of first refusal, as it seems to have created another issue for the parties to fight over. The ability of the parties to change the schedule needs to be minimized.

2. Counselling for Quinn

28At the start of the motion, the parties agreed that Quinn should attend for counselling but disagreed on whether counselling should be open or closed. As the day progressed, they agreed that Quinn would attend for closed counselling. They also agreed that if they could not come to a meeting of the minds on who should be retained to provide counselling, I would remain seized of the matter and will decide the issue on a summary basis. If the parties are unable to reach an agreement, they may each submit up to a maximum of two pages of submissions, not inclusive of curriculum vitae, setting out the reasons why they are recommending their counselor and not the other. The submissions should be sent to the trial coordinator’s office on the 10^th^ floor of 393 university Avenue, to my attention.

3. Facetime/Calls

29Calls/Facetime between Quinn and her parents seems to be another source of conflict between the parties, each alleging the other is not allowing the calls or interfering with the calls. As such, calls/Facetime with Quinn shall take place each night at 7:00 p.m., to last no longer than ten minutes. The parent with whom Quinn is residing on any given night has the obligation to place the call for Quinn and then provide Quinn with some privacy to speak with the other parent. If the parent receiving the call is not available, the call is forfeited that night. As Quinn gets older, she should have the right to speak to the other parent whenever she requests. However, at this age, and for so long as she cannot place the calls on her own, it is not possible. That issue will be left to the trial judge.

4. Registering Quinn in Programs:

30Mr. Closner took issue with the fact the Ms. Lavine registered Quinn for gymnastics on Saturdays, knowing that on his weekends he could not take Quinn to her lessons because he is an observant Jew and cannot drive on Shabbat. Given that the revised schedule will include a 2-2-3 residential schedule and therefore the Quinn’s days with each parent rotates, it is not in Quinn’s best interest to leave this issue open for debate between the parties. As such, each parent may schedule Quinn for one program at a time (for a total of two at any given time), but not to fall on a Friday evening (starting one hour before sundown) or any time on a Saturday.

5. Therapy:

31Mr. Closner has been working with a therapist, since June 2017. During the motion, he gave an undertaking that he will continue to work with his therapist. Both parties would benefit from counselling, even if just to give them tools to reduce their animosity to one another.

32The parenting schedule and incidental terms set out in the Order below, although temporary, are detailed and meant to last until trial. Given the history in this file as well as the fact that the parties still need to proceed to trial on the date of separation, I am anticipate the temporary residential schedule will remain in place for some time.

33If this issue does not proceed to trial in 2019, the parties should consider obtaining an updated s.30 Custody and Access Assessment from Howard Hurwitz.

34In summary, neither party should view this order as a “success” or a “victory”. The real message that they should both be hearing is that both parties have escalated the conflict to a point where they are both losing sight of what is really in the best interest of the child. Both parties are good parents. They both have strengths. They both have weaknesses. In these circumstances, it is not the Court’s role to decide who is a better parent. Both parties clearly love Quinn. Sadly the overriding concern when considering Quinn’s best interests is the effect the escalating conflict between the parties is having (and has had) on Quinn. Mr. Closner and Ms. Levine are really the only two people who can control this issue and have not done so to date.

Temporary Order to go as follows:

1. Commencing December 10, 2018, the parents shall share the residential schedule for Quinn, so that Quinn resides with her parents on a 2-2-3 schedule. Whoever has Quinn for the December 8^th^ weekend, shall drop Quinn off at school on Monday December 10^th^ and the other parent shall pick her up after school to start the schedule. She shall reside with Parent 1 for Monday and Tuesday, with Parent 2 for Wednesday and Thursday and then with Parent 1 for the weekend, returning her to school Monday morning. She shall then be with Parent 2 for Monday and Tuesday and Parent 1 for Wednesday and Thursday and then back to Parent 2 for the weekend, to complete the 2-2-3 schedule.

2. All drop offs and pick-ups shall take place at school, unless it is a holiday. The holiday time is set out below. Unless stated otherwise, if there is not school, the parent with whom residential time is ending, shall drop Quinn off at the other parent’s residence.

3. Other than the holiday schedule, if Quinn is sick or does not have school, the parent with whom she resided overnight shall be responsible for her until 4:00 p.m. that day, when she shall be returned to the other parent (if required pursuant to the regular schedule), by dropping her off at that parent’s residence.

4. Unless a matter is urgent, the parties shall communicate with one another by email using a program such as Our Family Wizard, such communication to be brief and limited to issues involving Quinn. Communication shall be limited to once per day. The parties shall share all information related to significant events in Quinn’s life, including but not limited to appointments, routines, school, health, etcetera.

5. Both parents shall respect the other parent’s religious observance.

6. The parents shall select a dentist who is not a family member. If the parties are unable to reach an agreement, they may each submit up to a maximum of two pages of submissions, not inclusive of curriculum vitae, setting out the reasons why they are recommending their dentist and not the other. The submissions should be sent to the trial coordinator’s office on the 10^th^ floor of 393 University Avenue, to my attention.

7. Within seven days of this order, each parent shall sign a direction and/or a consent to release information for the school, doctors, dentists, therapists or any other professional providing services to Quinn.

8. The parties shall refrain from making any disparaging remarks about the other parent and shall ensure that family members or adults in Quinn’s presence respect same.

9. Neither parent shall ask Quinn about her time with the other parent and shall refrain from asking Quinn about the other parent’s personal life.

10. Except as specifically set out paragraph 12 below, neither parent shall schedule activities, appointments, play-dates etcetera, for Quinn during her time with the other parent.

11. The parent with whom Quinn is residing, shall be responsible for facilitating a call/Facetime between Quinn and the other parent each night at 7:00 p.m., to last no longer than ten minutes. The parent with whom Quinn is residing with on any given night has the obligation to place the call for Quinn and then provide Quinn with some privacy to speak with the other parent. If the parent receiving the call is not available, the call is forfeited that night.

12. Each parent may register Quinn for one extra-curricular activity at a time (for a total of two at any given time), not to take place on a Friday evening or on a Saturday. Each parent shall be obligated to make reasonable efforts to ensure Quinn attends the activities.

13. On consent, the parties shall ensure that Quinn participates in closed counselling/therapy. If the parties are unable to reach an agreement on the choice of a therapist, they may each submit up to a maximum of two pages of submissions, not inclusive of curriculum vitae, setting out the reasons why they are recommending their therapist and not the other. The submissions should be sent to the trial coordinator’s office on the 10^th^ floor of 393 University Avenue, to my attention.

14. There shall be no right of first refusal unless a parent is going to be away overnight. If a parent is going to be away overnight when Quinn is scheduled to be with that parent, then that parents shall give at least 48 hours’ notice to the other parent. The non-resident parent shall have the right of first refusal to care for Quinn while the other parent is absent.

15. Neither party shall be entitled to make-up time if any parent misses his or her time with Quinn.

16. The parties shall ensure that that Quinn’s health card is left in her school bag and travels with her each day.

17. Both parties are permitted to attend all school activities.

18. Holiday:

18.1 Summer Vacation:

The regular schedule shall apply for the summer except that each party may take two one week holidays with Quinn, starting Friday on a weekend when Quinn is scheduled to be with him/her and ending Friday, to be returned to the other parent by 4:00 pm. The Applicant to have first choice in even numbered years and the Respondent to have first choice in odd numbered years. The parties shall provide other with his/her selected dates by April 1^st^ for the first parent and April 15^th^ for the second parent.

18.2 Passover, Shavuot and Succot:

The regular schedule shall apply, except that if a changeover is to take place during the holiday, given that the Respondent is not observant, she will be responsible for the pick-up and/or drop-off.

18.3 Rosh Hashana

Quinn will reside with the Applicant in odd-numbered years for the first night of Rosh Hashana (either from pick up from school, or if there is no school then from 4:00 p.m.) and with the Respondent for the second night. This shall be reversed in even-numbered years. Again, for the changeover, the respondent shall be responsible for pick up/drop offs.

18.4 Winter Break

In even numbered years, Quinn shall spend the first week of winter break with the Respondent and the second week with the Applicant and in odd numbered years Quinn shall spend the first week of winter break with the Applicant and the second week with the Applicant. Winter break begins Friday at the end of the school day and ends Monday morning, when the child returns to school. The changeover shall take place Saturday night, at 7:30 p.m., with the parent with whom Quinn is residing dropping Quinn off at the other parent’s residence.

18.5 Long Weekends

There shall be no changes to the schedule for statutory or school long weekends, except that the parent with whom Quinn is residing for the weekend, shall return Quinn to the other parent at 4:00 p.m. on Monday. If Friday is the holiday, then the parent with whom Quinn resided with overnight on Thursday, shall return Quinn to the other parent at 4:00 p.m. on Friday.

18.6 Canada Day

There shall be no change to the regular schedule for Canada Day.

18.7 Mother’s Day/Father’s Day

Quinn shall reside with her Mother on Mother’s Day from Sunday at 10:00 a.m., returning her to school Monday morning when the regular residential schedule resumes. Quinn shall reside with her Father on Father’s Day from Sunday at 10:00 a.m., returning her to school Monday morning when the regular residential schedule resumes.

18.8 Birthdays

There shall be no changes to the regular schedule for either party’s birthday. Quinn’s birthday will always fall during the winter break, as she was born on December 25^th^. If Quinn is in town for her birthday, the non-residential parent may spend time with Quinn from 4:00p.m. – 7:00 p.m. on her birthday, and to be responsible for both picking up and dropping Quinn off for this time. The Respondent shall be responsible for arranging Quinn’s party in even numbered years and the Applicant in odd-numbered years, if s/he elects to have one. Unless the parties agree otherwise, the other party shall not attend the birthday party.

19 Each parent shall be allowed to travel with Quinn during his or her time with Quinn, provided that they are travelling to a country that is a Signatory to the Hague Convention on the Civil Aspects of International Child Abduction. At least twenty days in advance of any such travel, the parent travelling with Quinn shall provide the other with a travel consent, with the dates of travel, precise details of the transportation, where they will be staying and how to reach them. The travel consent shall be signed and returned at least ten days prior to the trip. It is the responsibility of the parent who is travelling with Quinn to ensure that the calls/Facetime takes place during the holiday. If there is a time difference, at least seven days in advance of leaving on any holiday with Quinn, the travelling parent shall provide the other parent with a reasonable set time that Quinn will call each day.

20 The parties shall exchange Bills of Costs within ten business days of this order. Both parties shall then provide costs submissions, no longer than five pages, not inclusive of Bills of Costs and offers to settle. The submissions should be sent to the trial coordinator’s office on the 10^th^ floor of 393 University Avenue, to my attention, by December 28, 2018.

35In making submissions as to costs, the parties should be mindful of my comments above, with respect to the fact that neither party should view this order as a “success” or a “victory”.

Shore J.

Footnotes

1. 1Family Law Rules, rule 2(2) and (3) as well as 2(5) (e).
2. 2Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) at par. 25.
3. 3Young v. Young, 1993 CanLII 34 (SCC), 1993 CarswellBC 264 (S.C.C.) at 216.