Court File and Parties

COURT FILE NO.: FC-17-49-00 DATE: 20190222 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kevin Southorn, Applicant AND: Chantelle Ree, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Linda Paterson-Kelly, for the Applicant Fay McFarlane, for the Respondent

HEARD: February 21, 2019

Endorsement

BACKGROUND

[1] Kevin Southorn and Chantelle Ree, the Applicant and the Respondent in this matter, separated in September of 2016 after six years of cohabitation. They have two children, Payton who is 7 and Lucas who is 5.

[2] After separation, the children had their primary residence with Ms. Ree. Mr. Southorn had extensive access to the children, including midweek overnights. That went on for a matter of months, when an allegation was made by the Respondent in May, 2017 of sexual interference of Payton by Mr. Southorn’s father. This report was made because of sexualized behaviour by Payton in the bathtub along with a supposed disclosure of sexually inappropriate behaviour made to Ms. Ree.

[3] Those concerns were verified by neither the local Children’s Aid Society nor the police. According to the report of the investigator appointed by the Office of the Children’s Lawyer, this was because Payton refused to say anything to either the police or the Society workers.

[4] As a result of these child protection allegations, Mr. Southorn’s time with the children was significantly reduced throughout the investigation which ended, according to the OCL report, in October, 2017. Between May and October, 2017, Mr. Southorn only received three hours a week of access to both children. After completion of the investigation, Mr. Southorn shared time with the children every second weekend from Thursday at 5:00 p.m. to Saturday at 6:30 p.m. and alternate Thursdays from after school to 6:30 p.m. After a four-way meeting on October 30, 2018, the weekend time was extended to Sundays at 6:30 p.m.

[5] On February 28, 2018, Wood J. requested the involvement of the Children’s Lawyer. A social work investigation pursuant to s. 112 of the Courts of Justice Act [1] was conducted. A disclosure meeting was held on September 12, 2018 and the report released on October 5, 2018.

[6] The report confirms that the separation between the parties was marked with severe conflict, although that had eased off by the time that the OCL social worker became involved. A glaring exception to the assertion by the social worker of lack of conflict was Ms. Ree’s decision to place Payton in a French Immersion program at a different school from that of his brother, a decision that Mr. Southorn continues to disagree with, and apparently would overturn if he could. The report also confirms that the children want to see more of their father. The social worker recommended that the children have their primary residence with their mother, but that the parties share physical custody of the children on a 2-2-5-5-2-2 rotation.

[7] Mr. Southorn complains that Ms. Ree would not negotiate any increase in the time sharing in accordance with the OCL report. In argument, Ms. Paterson-Kelly said that the Respondent had agreed to adjust the time sharing in accordance with the investigator’s recommendations and she breached this undertaking, although she provided no evidence of this in her client’s affidavit. Although Mr. Southorn said in his affidavit that the parties met in October 30, 2018 and the Respondent would not negotiate any increase in time sharing with him, this was untrue as the parties agreed on that date to an increase in the Applicant’s time sharing with the children, extending his weekend time sharing to Sundays at 6:30 p.m.

[8] Although she has not filed a dispute to the OCL, Ms. Ree disagrees with the conclusions of the clinical investigator. She disputes his methodology. She intends upon cross-examining the investigator extensively at trial.

[9] On the other hand, Mr Southorn welcomes the conclusions of the investigator. In this motion, he relies upon the report to request a temporary order that custody be shared, or at least that his time with the children be increased. He also asks for an early trial date. The support issues were abandoned during argument.

Result

[10] For the reasons set out below, the Applicant’s motion to increase time with the children is dismissed. The matter is set down for trial during the May, 2019 sittings, with a Trial Scheduling Conference to be scheduled in Orillia on April 26, 2019 at 9:30 a.m.

ANALYSIS

[11] This case raises the issue of whether and how to utilize an OCL investigation or clinical assessment in an interim custody motion.

Applicable Law

[12] Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise: see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331(C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”

[13] There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less, instability in the child’s life. Moreover, evidence at a trial has the benefit of being tested through cross-examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.

[14] But what about where the evidence on the motion includes a report prepared by a trusted expert retained by the parties to analyze custody and access? Would that not give the court comfort in making a decision on a temporary motion in accordance with the expert’s recommendations, even if those recommendations involved changing a long term status quo?

[15] The short answer from long standing case law in this province is in the negative. An assessment report is only one piece of evidence to be used at trial and is not conclusive as to the result at trial: see Genovesi v. Genovesi (1992), 41 R.F.L. (3d) 27 (Ont. Gen. Div.). As suggested by Respondent’s counsel in argument of this matter, to adopt the position of an assessor at an interim motion “would deprive the trial judge of the right to determine which parent should be the primary care giver without hearing both sides”: see Shody v. Shody, [1992] O.J. No. 205 (Gen. Div.) at para. 4. Therefore, the court must act with caution in blindly following an assessor’s recommendations, and it is only in a “rare or exceptional category [of cases] where the assessor’s recommendation should be acted upon immediately and before the full investigation provided by a trial”: see Grant v. Turgeon, supra at para. 25.

[16] The law has developed to some extent since these cases were decided. The traditional approach, described by Pazaratz J. in Marcy v. Belmore, [2012] O.J. No. 3869 (S.C.J.) as being the “straightforward and fairly high threshold” approach, is that set out in F.I. v. S.P.P., 2010 ONCJ 473, [2010] O.J. No. 4501 (C.J.) where Wolder J. suggested that the court “should never disturb the existing status quo” the child’s well-being is clearly threatened, and the assessment report should not be used to vary interim custody unless it “reveals that the child is at risk or that he or she would decidedly benefit from a change”.

[17] However, in Bos v. Bos, 2012 ONSC 3425, [2012] O.J. No. 2704 (S.C.J.), Mitrow J. argues for a more flexible approach, and suggests that the court can consider evidence contained in an OCL investigation in making an interim determination of custody. He states at para. 23 of the decision that, although caution should be exercised in using an assessment report, that exercise of caution should not be “so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court”.

[18] It has to be noted that Mitrow J. is only suggesting usage of an assessment report at a motion where the court is making an order which is “not a substantive departure from an existing order or status quo.” It is also to be noted that Mitrow J. is careful to distinguish between evidence contained in the assessment report from its conclusions; in making his determination, he follows Forte v. Forte, [2004] O.J. No. 1738 (S.C.J.) where Corbett J. stated:

However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statements made by the children to the assessor. It is not the report's recommendations, but its substance and analysis that is of value. (emphasis mine)

[19] I am not sure that Mitrow J. is suggesting any real departure from the rule that a court should treat an assessment report with caution at a motion for a temporary order. He limits his decision to a situation where no substantive change in the order is being sought. He does not state anywhere that a change in custody, for example, should occur on a temporary basis because of the conclusions in an OCL investigation. He does not suggest that the conclusions are what are important; all that he says is that the court should be at liberty to utilize the evidence contained in the report along with the other evidence on the motion. He specifically agrees in his decision that the report should be treated with caution.

[20] Therefore, nothing in all of this changes the essential rule regarding a change in custody from an established status quo on an interim motion: the evidence, either garnered from the facts or garnered from the assessment or investigative report, must be compelling and immediate for there to be a change a long term status quo. If the assessment report does not contain evidence of the compelling facts necessary to change the status quo, that should put an end to the motion in the same manner as a party’s failure to provide that evidence. That was confirmed by Pazaratz J. in Marcy v. Belmore, when he relied upon an OCL investigative report to corroborate evidence that the mother had continued to leave her young children alone for eight hour stretches when she worked a night shift. It was obvious that the OCL investigation confirmed urgent and compelling circumstances warranting a change in the status quo. And in Daniel v. Henlon, 2018 ONCJ 122, O’Connell J. refused to change a status quo by removing a midweek visit as suggested by the OCL investigator where the “factual basis upon which the OCL recommendation to terminate the father’s mid-week access is questionable and untested” [para. 57].

Application to the Facts

[21] In his Notice of Motion, the Applicant requests shared custody based upon the recommendations of the OCL investigator. However, in argument, Ms. Paterson-Kelly retreated to some extent from this position, suggesting that the court only order additional time with the children in favour of her client. It was unclear what additional time that the Applicant was, in fact, requesting. However, if he is, in fact, asking for some additional access, this would not be a substantive change to the status quo, reducing to some extent the need for compelling evidence to be relied by the moving party.

[22] Ms. Paterson-Kelly, in argument, largely relied upon the statements made by the children as disclosed by the OCL investigator. The investigator noted that, although Payton was reticent and hesitant to share information with him, that “she enjoys spending time with her father and the paternal family members and would spend more time if she had the option to – in this she was consistent across two interviews.” [2]

[23] The investigator also notes that Lucas, aged 4, “was able to communicate his desire to see his father (and paternal family) more often because he enjoys it.” [3]

[24] The investigator states that he “finds that the children should be spending more time with their father” and he bases this both on the views and preferences of the children, as well as the fact that the mother’s “allegations regarding abuse have not been proven nor have they been verified by the Society, the pediatrician nor Payton’s therapist.” He also relied upon a suggestion by the Society worker that the father “should have equal parenting time.” [4] This recommendation was notwithstanding the acknowledged “history of significant conflict” between the parties, including their inability to agree on French Immersion schooling.

[25] None of these findings, nor the evidence provided by the Applicant, constitute circumstances that are sufficiently compelling to require an immediate change in the status quo. This is particularly so as the parties have agreed to an April trial scheduling conference, and this matter is being placed on the May trial sittings list. There is no immediate necessity for a change in the status quo considering the fact that this matter will be scheduled for trial during the May, 2019 sittings.

[26] Moreover, even if I was to consider increasing the time sharing for the children, I have some concern as to the contents of this investigative report. I firstly note that the investigator relies upon the opinion of a C.A.S. worker in determining that shared custody is in the children’s best interests. I note that the Society investigated allegations of sexual abuse concerning the children, but only determined that the children were at risk from parental conflict, which is an extremely negative factor when considering joint custody: see Kaplanis v. Kaplanis, 2005 CarswellOnt 266 (C.A.). It is concerning that the investigator appears to have relied upon the Society investigator to come to a conclusion as to shared custody when that individual will not be available for cross-examination at trial. Although an expert’s report can include hearsay evidence and this is a long standing exception to the hearsay rule, I am not so sure that a social work investigator can rely upon the conclusion of another not necessarily qualified individual in arriving at his or her ultimate conclusion.

[27] Moreover, the investigator seems to have presumed that shared custody is in the best interests of these children. He says that the children’s therapist “reported that there is no therapeutic evidence to suggest the father should have less parenting time” which also suggests that the starting point for this investigator was that the father should have more time with the children. He also says that the C.A.S. worker, Ms. Rogers, said that she saw “no reason why the Children should not be equally in the care of both parents” again suggesting that the investigator was presuming that shared custody was best for the children, and that he asked the worker whether there was any reason why not rather than an open-ended question.

[28] The investigator was also fairly pejorative concerning the allegations of sexual abuse by the Respondent and implied that this was one reason custody should be shared. Ms. Paterson-Kelly emphasized this during argument. However, the pediatrician told the child’s physician that the sexualized behavior of the child was “‘uncommon’ for her age and stage.” [5] And the parties, along with the Society, agreed on a “safety plan” at a First Nations Circle that if the children “go to either parents, grandfathers are not to be overnight where the children are overnight” [6], implying that there was some validity to the complaint. In all, there was no evidence that the report to the Society by Ms. Ree was malicious or improperly motivated in any way.

[29] There was also no substance to the Applicant’s suggestion in argument that Ms. Ree was “alienating” the children; if she was, she was spectacularly unsuccessful in doing so in light of the views and preferences of the children as disclosed by the investigator.

[30] Finally, there is no issue with a suggestion that the views and preferences of the children should play a role in the investigator’s recommendations; that is obviously one of the factors in determining the children’s best interests under s. 24(2)(b) of the Children’s Law Reform Act. [7] However, these are extremely young children, aged 6 and 4 at the time they were interviewed. Because of this, it is difficult to see how the court can conclude as to the weight to be placed on those views and preferences without hearing oral evidence from the investigator as the ability of the children to express those views and preferences. This is particularly so where Payton was acknowledged to be extremely hesitant about saying anything to the investigator.

[31] Ms. Paterson-Kelly suggests that the court should order shared custody in order to prove to the trial judge whether or not a shared arrangement would be successful for the children. With the greatest of respect, the placement of children pending trial is not a science experiment. We can only attempt to determine the best interests of the children pending trial and, in the absence of compelling circumstances, the status quo is the best measure of what the parties thought would address the best interests of the children. It is to be noted that the children have always resided in the primary care of their mother, Ms. Ree, even before the complaint to the Society which resulted in a reduction of the Applicant’s time with the children, and I am not willing to disturb this with the view of “testing the waters” to see if it is best for the children or not.

[32] Finally, the conflict between the parties is concerning. They could not agree on whether Payton should be given training in the French or Ojibway tongues, a fundamental clash of values that has yet to be worked out. In his materials, the Applicant implies that he would remove Payton from French immersion if he could. It is not, in my view, in the children’s best interests to put them in two different warring households, as this risks the children going between homes which are “ships in the night,” out of sight of the other parent’s household and values. It may very well be that the court will have to decide between these parents rather than have the children share homes.

[33] In the alternative, the Applicant suggests an increase in his time sharing not amounting to an equal time sharing. There was, however, no clarity as to what change he actually wanted, and he just obtained an increase in his time with the children in October 30, 2018. We are not here to chip away at an arrangement without some rationale behind the proposed change. We are here to consider a change in the time sharing which may be warranted in the children’s best interests, which are not clear to me from the material filed at this motion.

[34] Because of the apparent problems with the investigative report, and because the Applicant rests his case on the views and preferences of very young children and the Respondent’s supposed misconduct, I am not willing to change access at this motion especially where the trial is in the offing. For all of these reasons, the Applicant’s motion for shared custody or increased time with the children is dismissed.

[35] Order to go as follows: (a) Matter adjourned to a trial scheduling conference in Orillia Family Court on April 26, 2019 at 9:30 a.m. Parties to prepare Part 1 of the Trial Scheduling Conference Endorsement (witness lists and time estimates) and to confer on preparation of remainder of draft Trial Scheduling Conference Endorsement. (b) This matter shall be added to the May, 2019 trial list for trial. (c) Support issues withdrawn during argument.

[36] The Respondent has been successful on the major issue argued in this motion. The parties may make submissions as to costs, the Respondent first and then the Applicant, through my judicial assistant on a ten-day turnaround. Costs submissions to be no more than three pages in length not including any offers to settle that have been made or Bills of Costs.

Justice J.P.L. McDermot Date: February 22, 2019

Footnotes

[1] R.S.O. 1990, c. C.43. [2] OCL Investigation dated October 5, 2018, p. 11. [3] Ibid. p. 11. [4] Ibid. pp. 11-12. [5] Ibid, p. 20. [6] First Nations, Metis Inuit Circle Plan dated August 21, 2017, p. 3. This plan was not contained in either party’s material, but was handed up during argument on consent of both parties. [7] R.S.O. 1990, c. C.12.