Brown v. Kagan (Brown), 2019 ONSC 5033

Court File and Parties

COURT FILE NO.: FC-19-58093-00 DATE: 20190827

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Robin Allan McLean Brown Applicant

– and –

Jennifer Laura Kagan (Brown) Respondent

COUNSEL: E. Vine, for the Applicant R. Karrass, for the Respondent

HEARD: August 7, 2019

REASONS FOR DECISION

CHARNEY J.:

Introduction

1This proceeding is comprised of multiple motions brought by both parties. It is the latest skirmish in a long and acrimonious litigation history. The motions before me all relate to three earlier court decisions:

a. Brown v. Kagan, 2018 ONSC 564 (the “original decision”);

b. Brown v. Kagan, 2018 ONSC 6669 (the “review decision”);

c. Kagan v. Brown, 2019 ONCA 495 (the “appeal decision”).

2The motions seek to enforce, vary or clarify the orders made in those earlier decisions. In order to make any sense of the various issues raised in this proceeding it is necessary to begin with a review of the three court decisions at the heart of this case.

Original Decision

3The original decision was released on January 24, 2018, following an 11-day trial in November/December 2017. The issues in the case were custody and access, equalization, child support and spousal support. The main issues were custody and access over the parties’ then 2.5 year-old daughter (d.o.b. May 2015).

4Prior to the trial, on August 2, 2016, Miller J. ordered an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. While the s. 30 assessment was on consent, the parties could not agree on the identity of the assessor. Miller J. appointed the assessor preferred by the father. A comprehensive assessment was conducted from September 2016 to May 2017, and the report was provided to the trial judge.

5The facts relevant to the custody and access issues were summarized by the trial judge at paras. 3 - 77 of his decision. There is no need for me to repeat that summary for the purposes of this motion, and I intend to make reference only to specific facts as they become relevant to the issues on the motions before me.

6The trial judge found, at paras. 153 and 154, that “the relationship between the parties is so toxic that any form of joint parenting, including parallel parenting, would be doomed to failure, and would only exacerbate the conflict…In my view, one party or the other must be given decision-making authority over all matters involving [the daughter]. The question is which party should be given that authority”.

7The trial judge concluded (at para. 165): “The [father] has demonstrated characteristics that, in my view, would make it unwise to repose decision-making authority with him”. The trial judge noted (at para. 167) that the father “has demonstrated that he has an aggressive and somewhat bullying approach to the [mother] and to third parties”. He concluded, at para. 169:

If the [father] is given decision-making authority, I am concerned that he will demonstrate the same aggressive approach to the [mother] and others. Because of his propensity to lie, I do not see how the [mother] will have any confidence in the [father’s] ability to be candid with her as to decisions he has made, or that he will facilitate the provision of information to her regarding [the daughter].

8In the result, the trial judge awarded final decision-making authority to the mother, stating, at para. 170:

I will order that the respondent [mother] have sole decision-making authority regarding medical, dental and educational matters, provided she seek input, in writing, from the applicant before making any major decisions.

9The trial judge rejected the recommendation of the expert assessor respecting the parenting schedule. The assessor had recommended that because of the daughter’s young age, there should be a gradual increase in overnight visits with the father (see paras. 66 - 71). Pursuant to this recommendation, the daughter would graduate to a 2-2-5-5 schedule when she was 6 years old and in Grade One. The trial judge rejected this proposal, at para. 174:

I do not agree that there should be a gradual increase in overnight visits. I think overnight visits are very important, and there must be an accelerated increase in them, starting almost immediately.

10The trial judge established the following parenting schedule for the years 2018 to 2021 and thereafter (at paras. 190 -197):

I will order that the current arrangement, under which K. is with her father for three days per week, eight hours per day, continue until February 9, 2018…

Effective February 9, 2018, I order that K. spend every other weekend with her father from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. The first such weekend will be the weekend on which Saturday February 10, 2018 occurs, and the last such weekend will be the weekend on which Saturday April 7th occurs.

Commencing April 20, 2018, K. will be with her father on every other Friday after nursery school until the commencement of nursery school on Monday, and on Thursday of each week from the completion of nursery school until 7:00 p.m. The weekend visits will be every other weekend until the weekend of May 18, 2018.

Commencing June 1, 2018, the weekend visits will occur for three weekends in a row, and the fourth weekend will be spent with the respondent [mother]. Commencing the week of June 4, 2018, there shall be two mid-week visits, on Tuesday and Thursday of each week, from the completion of nursery school until 7:00 p.m.

During the months of July and August, 2018, K. will spend seven consecutive days with the applicant [father], during a period agreed to by the parties or I will fix by motion brought before me…

K. will spend the entirety of March Break, in March, 2019, and thereafter, with the applicant [father].

During the months of July and August, 2019 and 2020, K. will spend a period of 14 consecutive days with the applicant, as agreed between the parties or to be fixed by the court on short notice.

During the months of July and August, 2021 and thereafter, K. will spend a period of four consecutive weeks with the applicant, as agreed by the parties or as fixed by the court on short notice.

11The Court also accepted, with only minor amendment, the terms of the draft order proposed by the father with respect to the division of religious holidays between the parties (see para. 198). The father was given access on St. Patrick’s Day, Good Friday, Easter Sunday, Easter Monday, Brown Family Celebration Day (held the day before Mother’s Day), Father’s Day, Thanksgiving, Christmas (Christmas Eve, Christmas Day, and Boxing Day).

12The mother was given access on Purim (day), Passover (First 2 nights), Mother’s Day, Rosh Hashanah (3 days), Yom Kippur (2 days), Sukkot (first night) and Chanukah on the first day and on the first Sunday.

13The final order also includes a paragraph dividing access on those religious holidays which sometimes overlap (eg. Easter and Passover, Christmas and Chanukah).

14Thus, as things stand now, the father has parenting time with the daughter three out of four weekends, and Tuesday and Thursday afternoons from the end of school until 7:00 p.m.

15The parenting schedule established by the trial judge provides long periods of consecutive days with the father, but no equivalent consecutive days with the mother. Commencing June 2018 the father has three out of four weekends. Commencing March 2019, and thereafter, the father has the entirety of March Break. During the months of July and August 2019 and 2020, the father is given 14 consecutive vacation days with the daughter, and commencing 2021, this increases to four consecutive weeks. No equivalent consecutive vacation days are provided to the mother. The mother’s exclusive time with the daughter is comprised of her one weekend per month, and every Monday and Wednesday. The trial judge explained his reasons for this imbalance at para. 189:

I would emphasize that this situation arises because of the [mother’s] decision to move to, and remain in, Thornhill. It is not due to any decision made by the [father]. Thus, if it is necessary to provide additional time to the [father] on weekends, during March Break, and during vacation periods, which would otherwise be “fun time”, it is a situation largely of the [mother’s] making.

16Finally, the trial judge indicated, at para. 200, that he would conduct a review of the parenting schedule within one year of the order upon motion by either party.

Review Decision

17The review of the original decision was conducted by the trial judge on September 21, 2018. His review decision was released November 6, 2018. Both parties filed affidavits to support their respective positions, and the court considered this evidence in conducting the review.

18By the date of the review, the father had moved from Burlington to Woodbridge to be closer to Thornhill where the mother lived, and asked the trial judge to order a 50/50 arrangement into effect immediately. The mother asked that the father’s time with the daughter be reduced. The court rejected both positions, holding, at para. 26, “that the order I made should not be varied significantly, at least not now”.

19The Court concluded (at paras. 27 and 28), that notwithstanding the father’s “distinct propensity for lying, and that he has a somewhat bullying approach to the respondent and others”:

I am not convinced that these features should result in any reduction in the time [the daughter] spends with her father. There is sufficient concern, however, that the court should be cautious before expanding the time she spends with her father.

20The Court rejected the father’s evidence that the daughter did not want to Skype with the mother, and varied the order by requiring the father to arrange for one Skype communication with the mother on each day of a visit where the mother has not already had the daughter in her care. The Court made this order a reciprocal obligation on each parent.

21Finally, the Court declined the mother’s request to order another assessment under s. 30 of the Children’s Law Reform Act, stating, at para. 35 “Assessments of that sort are intrusive and expensive. There has already been one assessment and it was very thorough”.

Appeal Decision

22The mother appealed the parenting schedule set out in the original decision to the Ontario Court of Appeal. The appeal was heard on June 3, 2019, and the decision dismissing the appeal was released on June 17, 2019.

23The Court of Appeal summarized the mother’s position at para. 3:

The appellant’s main submission is that the trial judge erred in failing to follow the recommendations of the expert assessor respecting the parenting schedule, specifically, the gradual increase of overnight and holiday access. The appellant submits that their daughter is distressed by the present schedule because it provides for too much time away from her mother while she is very young. In support of this submission, the appellant seeks to file new opinion evidence from a clinical psychologist. The appellant submits that the trial judge imposed the parenting schedule to punish her for moving a fair distance away from the respondent after the marriage breakdown.

24The Court of Appeal started from the “principle that the trial judge’s determination of the appropriate parenting schedule is firmly within his discretion and that absent palpable and overriding error or error in principle, appellate intervention is unjustified” (para. 5). The Court found no such errors.

25The Court concluded that the trial judge could “accept all, none or part of the assessor’s recommendations” (para. 7), and that he fashioned an appropriate parenting schedule in the best interests of the parties’ daughter taking into account all relevant considerations. The Court concluded, at para. 8:

The trial judge recognized that the unfortunately toxic relationship between the parties made communications and co-operation between the parties very difficult, such that the 50/50 parenting model recommended by the assessor would not work. As a result, he granted decision-making authority to the appellant and created a parenting schedule that has the parties’ daughter spend most of her time in her mother’s care. The trial judge nevertheless appreciated, as the assessor also observed, that the parties are excellent parents who are devoted to their daughter. As a result, he determined that granting increased access to the respondent, including overnight and holiday access, would be in the best interests of their young child. His parenting schedule properly, fairly and thoughtfully reflects all of these considerations. These considerations had not materially changed by the time of the September 21, 2018 review. There is no basis to interfere with the parenting schedule on appeal.

26The Court of Appeal admitted as fresh evidence the report of clinical psychologist Dr. Liza Weiser, dated February 8, 2019, since it was tendered in relation to the issue of the best interests of the child. While the Court accepted Dr. Weiser’s expertise, it concluded that her observations would not have changed the parenting schedule ordered by the trial judge. Since Dr. Weiser’s evidence is central to the motion before me, I will quote the key parts of that report and set out in full the Court of Appeal’s decision in relation to her fresh evidence.

27In her February 8, 2019 report, Dr. Weiser stated:

[The daughter] struggles more with missing her mother during her time with her father; often worrying if her mother knows where she is when she is not with her.

[The daughter] expresses that she is upset if she cannot speak with her mother when she is away from her. She has said that when she is with her father and expresses her feelings about missing her mom, her dad tells her that she doesn’t really miss her, and that she is just kidding, to which she stated “but I do miss her, I am not kidding!”

[The daughter] has told me that she is comforted by speaking to her mother, and looking at pictures of her, when she is away from her. Yet, [the daughter] also reported that when she is with her dad and asks to speak to her mom, he does not regularly allow [the daughter] to contact her. [The daughter] stated that on the occasions in which she is able to speak to her mother, however, she feels much better. Similarly, [the daughter] said that she had a book of photographs at her dad’s house containing pictures of her mom’s family, and that it made her feel better to look at them, but she relayed with sadness that her dad told her that “the dog ate the book” and she no longer has it.

Furthermore, there have been concerns of [the daughter’s] behaviour and emotional well-being after visits with her father. For instance, [the mother] has reported that although [the daughter] is generally a very loving and sensitive child, when she returns form access visits with her father she is extremely angry and aggressive toward her. [The daughter] screams and yells, cries inconsolably, hits her mother, and does not allow her to help soothe her. After the first day or two of being home, [the daughter’s] distress decreases, and when she is upset she is able to let her mom assist her in calming down.

It is my opinion that from a developmental standpoint, although [the daughter] is cognitively extremely bright, emotionally she does not have the tools to cope with the separation from her mother without considerable assistance and support during that time. In addition, [the daughter] will become tremendously distressed if she has to endure a prolonged separation from her mother, by which at her age would be no more than five consecutive days.

28The Court stated, at paras. 10 and 11:

Dr. Weiser is a clinical psychologist who has seen the parties’ daughter on eight occasions between September 26, 2018 and February 4, 2019. The report mostly describes Dr. Weiser’s observations and summary of K.’s feelings when she is with her parents and makes recommendations as to how communications between her and her parents can be improved when K. is away from each of them. Importantly, Dr. Weiser notes that K. “has been able to express how she misses both parents when she is not with either one of them, but she struggles more with missing her mother during her time with her father; often worrying if her mother knows where she is when she is not with her”. While Dr. Weiser does opine that K. will become distressed when away from her mother, she also notes that this distress can be alleviated by contact with her mother. She forecasts that K. “will become tremendously distressed if she has to endure a prolonged separation from her mother, by which at her age would be no more than five consecutive days”.

In our view, Dr. Weiser’s report would not have changed the parenting schedule ordered by the trial judge. It is important to remember that Dr. Weiser’s observations were made when K. was three years old and speaks to the effect of separation from her mother as at that age. She gives no opinion as to the effect of such a separation when K. is 6, when the first month holiday with her father is proposed to occur under the parenting schedule. Moreover, any concern about distress appears to be mitigated by the communication and other techniques that Dr. Weiser advocates for K.’s comfort.

29Accordingly, the Court dismissed the mother’s appeal.

The Motions

30With that background I can address the issues raised in the motions before me.

31To be clear, while the mother brought a Motion to Change on February 22, 2019, (Vol. I, tab 1 of the Continuing Record (CR)), the Motion to Change is not before me.

32The first motion before me (Vol. IV, tab 5 CR) is a motion brought by the mother for:

i. An Order for an assessment under s. 30 of the Children’s Law Reform Act;

ii. An Order changing the parenting schedule set out in the original decision, by reducing the father’s 14 consecutive day summer vacation in July/August 2019 to two periods of no more than 7 consecutive nights, to be separated by at least 14 days;

iii. In the alternative, an order that neither parent be permitted to take the daughter for more than 5 consecutive nights;

iv. An order that if the father has 5 consecutive nights, the mother shall have 5 consecutive nights;

v. In the alternative, an order that neither parent have extended holiday time with the daughter until the completion of another s. 30 assessment;

vi. An order clarifying the commencement and end time of the father’s parenting time when there is no school or camp;

vii. An order that weekend parenting will alternate between the parties.

33The second motion is a cross-motion brought by the father (Vol. IV, tab 1 CR) for an order fixing the 14 day summer vacation in July/August 2019 as required by the original order.

34The third is the “change school” motion (Vol. VI, tab 1 CR) brought by the father for:

i. An order de-registering the daughter from enrolment in Bialik Hebrew School for September 2019;

ii. An order prohibiting the mother from enrolling the daughter in any religious school;

iii. In the alternative an order that the father have final education decision-making for the daughter.

35The mother’s motion and the father’s cross-motion were originally scheduled for one-hour on July 24, 2019. The father’s change school motion was originally scheduled for one-hour on August 14, 2019. On July 24, 2019, I ordered that all three motions proceed before me as a full day motion on August 7, 2019.

36Given the urgency of the relief requested, I delivered brief oral reasons at the conclusion of the argument of the motion on August 7, 2019, dismissing the mother’s motion to reduce the father’s 14 consecutive day summer vacation in July/August 2019 to two periods of no more than 7 consecutive days, and I fixed the 14 consecutive day vacation as requested by the father. I made incidental changes to the parenting schedule for the remaining days of August and the Labour Day weekend to provide some balance to the parenting time available to each parent for that month. I will provide more detailed reasons for that decision in these reasons.

37I reserved on the balance of the relief claimed in the mother’s motion.

38I also dismissed the father’s motion to de-register the daughter from enrolment in Bialik Hebrew School, or to give the father final education decision-making for the daughter. Again, I will provide more detailed reasons for that decision in these reasons.

i) Jurisdiction

39The Court has jurisdiction to alter custody or access on an interim basis pending trial in a motion to change a final order. In Bors v. Bors, 2019 ONSC 765, Coroza J. stated, at paras. 50 - 51:

There is no dispute that a court may alter custody or access on an interim motion pending trial in a motion to change a final order.

While I agree…that the general rule is that the status quo should be maintained, if there has been a material change in circumstance since the making of the final order, then custody and access can be changed on an interim basis: see Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), r. 29. (See: Papp v. Papp (1969), 1969 CanLII 219 (ONCA), [1970] 1 O.R. 331 (C.A.) and McEachern v. McEachern (1994), 1994 CanLII 7379 (ONSC), 5 RFL (4th) 115 (Ont. C.J. (Gen. Div.)), at para. 9).

40See also: Caparelli v. Caparelli, 2009 CanLII 73655 (ONSC), at para. 12:

Pursuant to s. 17(5) of the Divorce Act, 1985 c. 3 (2nd Supp.) and r. 15(28) of the Family Law Rules, O. Reg. 114/99, the court may grant a temporary order to vary a final order where it is satisfied that there has been a change in the condition, needs and/or circumstances of the child taking into consideration the best interests of the child or children. The change must be material rather than of a momentary kind. This is to discourage spurious applications but its purpose does not create so onerous a presumption or burden in favour of the original order that the child’s best interests are sacrificed as a consequence: see Montgomery v. Montgomery, 1992 CanLII 8642 (ONCA), [1992] O.J. No. 2299 (C.A.).

41For a change to be “material” within the meaning of s. 17 of the Divorce Act, it must be a change of circumstances that, “had they existed at the time…would likely have resulted in a different order” (Hickey v. Princ, 2015 ONSC 5596, 127 O.R. (3d) 356, at para. 49). The same analysis applies to custody and access cases brought under s. 29 of the Children’s Law Reform Act: Forrester v. Dennis, 2016 ONCA 214, at para. 8.

ii) Parenting Schedule

42The mother takes the position that the daughter’s behaviour after the review decision and after the appeal decision is continuing to worsen as a result of increasing “emotional disregulation”. The mother relies on a letter from the child’s psychologist, Dr. Liza Weiser, which repeats and confirms the concerns raised in Dr. Weiser’s report that was admitted as fresh evidence in the Court of Appeal. The letter states Dr. Weiser’s opinion that prolonged physical separation of more than five days from either parent will cause distress that can have serious and lasting effects.

43Dr. Weiser’s report is dated June 21, 2019 – just four months after Dr. Weiser’s February 8, 2019 report to the Court of Appeal, and just four days after the release of the Court of Appeal’s decision in this case.

44While Dr. Weiser acknowledges that it is beyond the scope of her practice to make recommendations regarding access, she indicates that it is not beyond the scope of her practice to comment on the factors that she believes can be emotionally damaging to the child. She opines that, in light of the daughter’s current emotional well-being, permitting the father to take the daughter for a 17-day holiday¹ would be harmful to the daughter. She states:

As [the daughter’s] therapist, it is my opinion that such a lengthy absence from [the mother] is contraindicated by [the daughter’s] age and developmental stage, and would be harmful to her.

…I repeat my initial recommendation made on February 8, 2019, that in my opinion, from a developmental standpoint, [the daughter] will become extremely distressed if she has to endure a prolonged physical separation from either parent, which at her current age should be no more than five consecutive days. (Emphasis in original)

45Dr. Weiser’s evidence in this regard is consistent with and repeats her report admitted as fresh evidence in the Court of Appeal.

46There is, of course, an inherent danger in relying on a report that has not been tested by cross-examination. Since the mother’s motion was adjourned from July 24 to August 7, 2019, I ordered that the father could cross-examine Dr. Weiser at a special examiner’s office in advance of the return of the motion, and rely on a transcript of the cross-examination at the hearing of the motion. The cross-examination took place on July 31, 2019, and the transcript was filed with the court.

47The father contends that Dr. Weiser’s evidence should not be admitted because she is not qualified to give expert opinion evidence and is not independent or impartial (White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] SCC 23, at para. 45).

48Having reviewed the cross-examination of Dr. Weiser, I am satisfied that she is qualified to provide opinion evidence as a participant expert (see: Westerhof v. Gee Estate, 2015 ONCA 206, at paras. 61, 64) and the opinion evidence she has provided is within the scope of her expertise as a clinical psychologist. Dr. Weiser is an experienced clinical psychologist. She received her Ph.D. in Psychology from York University in 1994. While her practice is not restricted to children, she has worked with children for over 20 years. Half of her patients are from divorced families.

49Dr. Weiser is the daughter’s treating psychologist, and has provided her opinion based on her general expertise with respect to child development, and her specific therapy sessions with the daughter. She explained at the cross-examination that her opinions and concerns are based on what the daughter tells her at these therapy sessions. She has no reason to disbelieve the statements made by the daughter, because they simply reflect the way the daughter feels about each of her parents. The daughter consistently repeats the same feelings over and over, and Dr. Weiser has no basis to doubt that the daughter is expressing her true feelings to her.

50Based on the cross-examination, I accept the independence and impartiality of Dr. Weiser. Dr. Weiser acknowledged that the daughter is equally attached to both parents, and misses both parents. Her recommendation is that the daughter not spend more than five consecutive days away from either parent. She emphasized that her report was based on what she believed to be in the best interests of the daughter, based on her treatment of the daughter and her understanding of the relevant literature. She arrived at this recommendation before she read the assessment report from the trial, but her recommendation that the child not spend more than five days away from either parent at this stage of her development is consistent with the recommendation of the expert who prepared that report.

51Counsel for the father argued that Dr. Weiser was combative or evasive in answering questions, but the transcript does not support this contention. There are several occasions when Dr. Weiser does not understand the question being asked or requests clarification, but these were legitimate points of clarification based on the ambiguity or imprecision of the questions asked. For example, when questioning Dr. Weiser, the father’s counsel used the words “affidavit” and “report” interchangeably. This resulted in confusion because Dr. Weiser prepared the report, but the affidavit - which simply appends the report as an exhibit and confirms the truth of the report - was prepared by counsel and signed by Dr. Weiser. Dr. Weiser understood that these were two distinct documents, but the questions did not reflect this distinction, and this, understandably, resulted in some confusion.

52The concerns raised by Dr. Weiser were fully set out in her February 8, 2019 report. The June 21, 2019 report confirms that those concerns continue, but they appear to be the same concerns that were considered by the Court of Appeal in its decision of June 17, 2019.

53The issue on this motion is not simply whether I am persuaded by Dr. Weiser’s report. If this were the only question, I would likely follow her recommendation.

54The issue on this motion is whether Dr. Weiser’s conclusion - that prolonged physical separation from either parent should be no more than five consecutive days - presents a material change in circumstances. Given the decisions of the trial judge and the Court of Appeal, I must conclude that this is not a material change in circumstances. This was the expert opinion given by the assessor at trial, and this was the expert opinion considered by the Court of Appeal. The factual matrix giving rise to that opinion remains unchanged. The Court of Appeal upheld the 14 consecutive day holiday ordered by the trial judge, and it is not open to me, just two months after the Court of Appeal’s ruling, to reverse that decision.

55It was on that basis that I dismissed the mother’s motion to divide the father’s 14 consecutive day summer vacation in July/August 2019 into two periods of no more than seven consecutive days, and ordered that the father’s 14 consecutive day summer vacation begin on Wednesday, August 14, 2019, and end on Tuesday, August 27, 2019, at 7:00 p.m.

56Having made that order in conformity with the order of the trial judge and the ruling of the Court of Appeal, I nonetheless concluded that incidental amendments to the parenting schedule were required. Giving the father 14 consecutive days in August, together with three out of four weekends, would result in a schedule in which the father would have 17 exclusive days with the daughter, while the mother would have only five, comprised of a three day weekend and two Wednesdays. That imbalance must be corrected for the reasons below.

57There is one material change in circumstances that, in my view, does require an alteration of the parenting schedule on an interim basis. On May 21, 2019, the mother, who is now remarried, gave birth to a son. The parenting schedule established by the trial judge could not have taken this into account, since both the original decision and review decision predate the birth. The birth occurred just a couple of weeks before the Court of Appeal case was argued, and was not referenced by the Court of Appeal in its decision.

58The sibling relationship between the daughter and her new brother is an important relationship. It is said that a sibling bond is the longest term bond that a child will have. It is in the best interest of the daughter that she be given an opportunity to establish a bond with her new brother. This opportunity should begin immediately, and will require more than just a day here and there. In my view, the imbalance in the August schedule will interfere with the daughter’s ability to bond with her infant brother. If no changes are made, she will barely see him - or her mother - that month. Accordingly, while I confirmed the father’s 14 consecutive days, I also granted the mother two August weekends - August 9 - 12 and August 30 - September 2, to give the daughter some consecutive days with her mother and brother. This is still substantially fewer than the consecutive days given to the father, but will provide some continuity and stability in which a sibling bond can be established.

59Come September, when the daughter is going to school five days a week, weekends take on greater importance as time for the family to be together. The schedule established by the trial judge gave the father three out of four weekends, commencing Friday after school until the commencement of school on Monday. The father also has Tuesday and Thursday afternoons from the end of school until 7:00 p.m.

60Once school begins, this means that the daughter will be with her mother and brother only Monday and Wednesday after school three weeks out of four. While this schedule might have made sense when the daughter was an only child, it is not in her best interest when she has a sibling. This provides insufficient time for a school age child to bond with her younger sibling. It is in the daughter’s best interest to be able to spend every other weekend with her new brother, so that they have time to play together and can develop an appropriate sibling bond on the days that the daughter does not attend school.

61I do not mean to suggest that the birth of a sibling will always qualify as a material change in circumstances. Whether the birth of a sibling constitutes a material change is contextual, and can only be determined by examining the specific facts of each case and the precise terms of the parenting schedule sought to be varied: MacDonald v. MacDonald, 2014 ABCA 91, at paras. 6 and 12; Simmons v. Simmons, 2016 ABQB 479, at para. 37; Garland v. Brouwer, 2016 ONSC 5966, at para. 7.

62I am, however, persuaded that in this case the birth of the sibling qualifies as a material change in circumstances such that the status quo should not be maintained pending a trial. Accordingly, the order of the trial judge should be varied. I order that weekend parenting will alternate between the parties commencing the weekend of September 7, 2019, which is the father’s weekend. The next weekend - September 14, 2019 - will be the mother’s weekend, and so forth.

63The parenting schedule established by the trial judge does not have a provision for extended holiday time with the mother. Now that the daughter is attending school, it is not in the daughter’s best interest to be denied participation in summer family vacations with her mother and brother.

64While the order of the trial judge made provision for 14 consecutive days with the father in July/August, no such provision was made for the mother. This was intended to compensate the father for lack of weekday overnights with the daughter, but creates a problematic situation once the daughter has a sibling. Accordingly, the mother should have 10 consecutive days with the daughter during the month of July/August 2020 so that the daughter and her brother can share in summer family vacations together. I recognize that this is still four days fewer than the father’s consecutive vacation days.

65The order of the trial judge also provides that as of 2021, the father will be given 28 consecutive vacation days with the daughter. There is no provision for consecutive summer vacation days with the mother and brother. I assume that the motion to change will be heard well before July/August 2021, and therefore I do not have to make an interim order with respect to that part of the parenting schedule.

iii) Clarification of Commencement and End of the Father’s Parenting Time

66The trial judge ordered that, commencing the week of June 4, 2018, the father shall have two mid-week visits, on Tuesday and Thursday of each week, from the completion of nursery school until 7:00 p.m. The same rule applies to weekends: the father is to pick up the daughter Friday after nursery school, and drop her off at the commencement of nursery school on Monday.

67The interpretation of this order has caused some dispute between the parties during the summer holidays and on long weekends. The mother contends that the words “completion of nursery school” means the time that nursery school usually ends, whether or not the daughter is attending that day. Similarly, the father is to drop the daughter off on Monday morning when nursery school would begin, whether or not the daughter is attending nursery school that day.

68The father contends that if there is no school or camp on Monday, he does not have to return the daughter to the mother until school would have ended. If there is no school or camp on Tuesday or Thursday, then he gets the entire day until 7:00 p.m.

69In my view, the intention of the original order was for the father to have Tuesday and Thursday from when school would normally end at approximately 3:00 p.m. until 7:00 p.m. That applies whether or not the daughter is as at nursery school on any particular Tuesday or Thursday.

70The issue of holiday Mondays was not directly addressed in the January 24, 2018 Order of Gray J., except for Easter Monday and Thanksgiving, which were specifically assigned to the father pursuant to para. 12 of that Order. Given the variation of that Order in this decision, which establishes alternate weekends for the mother and father, I will order the usual term, which is that the holiday Monday goes to whichever parent has the child that weekend, except for Easter Monday and Thanksgiving, as per para. 12 of the January 24, 2018 Order.

iv) Change School Motion

71The father argues that, notwithstanding the final order granting the mother “sole decision-making authority regarding… educational matters”, the court should overrule the mother’s decision to send the daughter to the Bialik Hebrew School, because he does not agree with this choice. The father asks that the court grant him final decision-making authority over education.

72As indicated above, I dismissed this claim from the bench. In my view, “sole decision-making authority” means precisely what it says. The purpose of granting one parent “sole decision-making authority” is to eliminate that issue as a source of conflict and continued litigation. The court has decided that it is in the child’s best interest that the mother has sole decision-making authority over which school the daughter should attend. That means that the father cannot challenge the mother’s decision simply because he does not agree with her choice of schools.

73The father can only ask to vary the trial judge’s order that the mother have “sole decision-making authority” if there has been a material change in circumstances since the trial. For a change in circumstances to be material it must relate to the circumstances giving rise to the original order.

74The trial judge granted the mother sole decision-making authority because the relationship between the parties was so toxic that joint parenting “would be doomed to failure, and would only exacerbate the conflict” (paras. 153 - 154). The trial judge denied the father decision-making authority because of his “aggressive and somewhat bullying approach” and “propensity to lie” (paras. 167, 169).

75There has been no material change to these circumstances. That, in my view, is sufficient to conclude that the father’s motion must be dismissed.

v) Parental School Choice

76That said, I will address the other arguments raised by the father. On this motion, the father claims that the mother’s decision to enrol the daughter in a Hebrew school is a material change in circumstances. This position essentially argues that the mother’s exercise of the decision-making authority granted to her by the court amounts to a material change in circumstances. That cannot be.

77Parents in Ontario have an abundance of educational options for their children. There are four public school boards in each geographic region of the province (English Public, English Catholic, French Public and French Catholic). Many of those boards offer specialized programs such as French immersion and arts-based schools. Many school boards have an optional attendance policy that permits students to attend schools outside of the school designated to serve their area of residence. Parents can also choose among a plethora of private schools, which may focus on religion, culture, language, athletics, or specific educational programs, philosophies or approaches.

78The debate over the relative merits of secular versus religious school, or public versus private school, predates Confederation in this province, and continues to this day². These are issues on which experts and reasonable people disagree.

79A parent’s choice of school may be influenced by a myriad of legitimate factors, including location, the parent’s general or pedagogical philosophy or approach to education, financial resources, availability of extra-curricular activities, and perceived or real academic standing or program distinctions among schools. As a child ages, the views and interests of the child may become a relevant consideration. If there is more than one child, an effort is often made to send siblings to the same school. No one factor is overriding or paramount.

80Faced with these multiple options and a complex range of variables, there is no “right” or “wrong” school choice. All of the choices listed above fall within a range of reasonable alternatives. All of the choices listed above meet the compulsory attendance requirements of s. 21 of the Education Act, R.S.O. 1990, c. E.2. Any one of these choices could be defended as being in the best interests of the child. Parents in Ontario have the legal right to make that choice for their minor children, and, where one parent is given decision-making authority by the court, that parent has the legal right to make that choice.

81Judicial micro-management of parental choices that fall within a range of reasonable alternatives will only serve to exacerbate parental conflict and invite the very kind of unnecessary litigation the trial judge was seeking to avoid when he granted decision-making authority to the mother.

82Given the complex range of variables that go into parental school choice, a court is in no better position than a parent to make the “right” or “best” decision for any child. As such, a court should not interfere with the choice of a parent with decision-making authority over education unless the impugned decision will significantly disrupt the other parent’s access, or there is expert evidence that the impugned decision does not fall within the range of reasonable alternatives³. No such evidence was presented on this motion.

vi) The Father’s Alleged Mi’Kmaq Heritage

83The father, for the first time in the long history of these proceedings, asserts that he is a Mi’Kmaq Aboriginal by birth. His affidavit states:

My Mi’Kmaq heritage can be followed through my maternal family, and traces back to Newfoundland, where both of my parents were born…My heritage includes Mi’Kmaq with Anglican and United forms of Christianity that have been passed down.

I am presently a non-status aboriginal, however, I qualify for band status with the Qalipu First Nation in Newfoundland. At present, they are not accepting new applications, however, I intend to apply once the application process is reopened.

84The father has attached to his affidavit copies of documents that he alleges confirm that his maternal great grandfather and maternal great great grandmother were Mi’Kmaq.

85The father asserts that he has shared his Aboriginal heritage with his daughter, and wants her to attend a school “that recognizes the importance of all heritages, not just one”. He does not want her to attend Bialik Hebrew School, he states, because it focuses on Jewish education and the Hebrew language, and does not celebrate any special ceremonies associated with Indigenous people.

86Bialik does not have a school policy on Indigenous education, but the school does follow the Ontario curriculum, which has Indigenous units in Grades 3 and 5.

87The father alleges that the daughter will be harmed if she attends a Hebrew school. He asserts that she will be alienated from her paternal culture and heritage, and states:

My family has been victims of cultural genocide, and much of our Mi’Kmaq culture has been lost through attendance at residential schools, or by Catholic Missionaries.

88The mother takes the position that the father’s claim to Mi’Kmaq heritage is a recent fabrication, manufactured for the purpose of this motion. She has known the father since 2012, and his affidavit in support of this motion was the first time she had ever heard this claim. To the best of her knowledge, the father has never taken any steps to expose the daughter to Mi’Kmaq heritage to date. In any event, she states, if the father does have Mi’Kmaq heritage, she has no objection to the father exposing the daughter to this heritage on his parenting time.

89Given my conclusion above, the dispute over the father’s alleged heritage is a red herring. Even if the father has Mi’Kmaq heritage, this would not, in any event, qualify as a material change in circumstances, since he would have had the same heritage at the original trial and at the review. Having never mentioned this during the trial or the review, the father cannot now complain that the trial judge failed to take it into account when he awarded sole decision-making authority to the mother.

90That said, given the father’s unfortunate “propensity to lie” and forge documents, the court should not simply accept this belated revelation at face value.

91The father’s propensity to lie has been the subject of several judicial comments in previous proceedings in relation to this matter. For example, Gray J. made the following comments about the father in his January 24, 2019 decision:

I am convinced that his propensity for lying goes considerably beyond what he acknowledged. [para. 26]

The applicant has lied repeatedly, both before and during this litigation. As one example only, he lied about having a PhD from MIT. He lied about it to his employer, Pinchin. He lied about it to the respondent and her mother. He lied about it to this court, since he testified that he had not represented to Pinchin, when he was first employed, that he had a PhD from MIT. His evidence was belied by the evidence of Mr. Grossi. [para. 166]

92Gray J. also found, at para. 29, that the father had forged a lab report, and, at para. 211, that the father was not telling the truth about his income.

93Gray J. repeated these observations in his decision on November 6, 2018:

I granted sole decision-making power over the parties’ daughter…to the [mother]. My main reasons for doing so were that the [father] had a distinct tendency to lie, both before and during the litigation.

94More recently, the father was discovered to have lied on an affidavit of service by serving on the mother’s counsel a consent order that was substantively different than the consent order he filed with the court. As a result of this fraud, the father was prohibited from relying on his own affidavit of service in any proceeding before the court, and was prohibited from bringing any further motions in writing without leave of the court. In her costs endorsement dated August 20, 2019, McGee J. stated, at paras. 9-10:

Court systems do not anticipate this level of duplicity. The presumption, and the obligation of litigants is honesty. When dishonesty is discovered, one must independently ascertain the truth before turning to the misfeasor.

I have looked carefully at [the father’s] submissions to find an explanation for his attempted fraud on the court. There is none.

95Based on these earlier rulings, I must approach the father’s recent claim to Mi’Kmaq heritage with some scepticism. As indicated above, the father never made reference to this alleged heritage in any previous court proceeding or correspondence. There is nothing in the draft order proposed by the father with respect to the division of religious holidays (see para. 11 above) that makes any reference to ceremonies or holidays associated with Indigenous people.

96The parties have provided the court with their email communications regarding school choice. These emails confirm that the mother did consult with the father in writing as required by the January 24, 2018 Order. In these emails, the father advocates for enrolment in a Montessori private school, or a private school in Rockwood, Ontario, just east of Guelph and one-hour from Thornhill. At no point in those emails (dated July 24 - 30, 2018) does the father indicate any concern about exposing the daughter to Aboriginal heritage.

97The documents provided by the father to support his claim to Mi’Kmaq heritage are themselves suspect. There is no evidence to corroborate the father’s claim that he is related to anyone mentioned in the documents. One of the documents is completely illegible. The other is a copy of a photograph of a woman in a Victorian era dress. By themselves the documents prove nothing.

98Given the father’s track record for dishonesty and forgery, and the fact that his claim to Indigenous heritage was revealed for the first time on this motion, I would not accept the father’s claim without some independent corroboration from, for example, a Newfoundland First Nations group. No independent corroboration has been offered.

99That said, my analysis would remain unchanged even if I accepted the father’s claim as true. First and foremost, as already indicated, his Mi’Kmaq heritage is not a material change in circumstances.

100Second, the trial judge’s January 24, 2018 Order does expressly provide for religious and cultural activities at para. 17:

Religious/Cultural Activities. Each parent is free to have the child participate in religious or cultural activities provided that they do not conflict with the other parent’s parenting time, without their written consent.

101The father is, therefore, free to expose the daughter to his religion and culture during his parenting time. He has, however, offered no indication as to how he did this in the past or how he intends to do this in the future.

102Inter-faith and inter-cultural⁴ partnerships and marriages are commonplace in contemporary Canadian society. So is separation and divorce. If the parties separate or divorce, both the custodial parent and the access parent have the right to share their religion or culture with their children, subject to the child’s capacity to express preferences and make decisions: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 125, 129, per McLachlin J. (as she then was)⁵.

103In Van de Perre v. Edwards, [2001] 2 SCR 1014, 2001 SCC 60, the Supreme Court of Canada distinguished “the role of race in adoption cases and those cases involving two biological parents desiring custody”. The Court’s analysis is directly applicable to this case. The Court stated, at para. 39:

In adoption cases, the situation might arise whereby the court must make an either/or decision; in other words, the child is either granted or denied exposure to his or her own heritage. Here, however, we have two biological parents, each of whom shares a part of the race and culture of the child. Of these two biological parents, one will be granted custody and one will be granted access. The result here is that Elijah will have exposure to both sides of his racial and cultural heritage. There was no evidence introduced to suggest that greater exposure to one’s racial background through custody as opposed to access is in the better interests of the child in every case.

104The father’s reliance on the history of residential schools, where Aboriginal children were denied access to their biological family in order to erase their culture and history, is inapposite. If the daughter has both Jewish and Aboriginal heritage, she can be exposed to both. This simply reflects the reality of her particular family situation.

105Education is not a zero-sum game, and the father has provided no evidence to support his contention that any increase in the daughter’s knowledge of her mother’s religion or heritage must come at the expense of her knowledge of the father’s.

vii) March Break and s. 7 Expenses

106The father does raise two valid points, but neither gives him the result he seeks.

107The father’s first point is that the trial judge’s January 24, 2018 Order granted him “the entirety of March Break” commencing in 2019. The father correctly points out that Bialik Hebrew School does not have a March Break, it has a Passover Break, which, because Passover is based on a lunar calendar, may begin in either March or April of any year. Whether intentional or not, the mother’s decision to send the daughter to Bialik deprives him of one week of access.

108As I indicated in my oral reasons, the father has interpreted the January 24, 2018 Order too literally. The clear spirit and intent of the Order was to give the father the school break in the second term, which is sometimes referred to as March Break, sometimes as Spring Break. Nothing turns on the nomenclature. Accordingly, if the daughter attends Bialik School, the father’s “March Break” will occur during the Passover Break in March/April, subject to the mother’s access on the first two nights of Passover in accordance with para. 13 of the January 24, 2018 Order, which in turn is subject to para. 15 of the Order dealing with holiday conflicts.

109The father’s second point is that he cannot afford to contribute to the tuition of the private school.

110The father’s limited financial resources goes to the question of whether he has to contribute toward the tuition, not to the right of the mother to enrol the daughter in the school. Tuition and attendance are two different questions.

111Under s. 7(1)(d) of both the federal and Ontario Child Support Guidelines, (see: SOR/97-175; O. Reg. 391/97) a child’s “extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs” qualify as special or extraordinary expenses for which provision may be made by a court in a child support order. The designation of a particular expense as a s. 7 expense must be based on: i) “the necessity of the expense in relation to the child’s best interests”; and ii) “the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”. See: Korman v. Korman, 2015 ONCA 578, at para. 70.

112Whether private school tuition qualifies as a reasonable and necessary s. 7 expense is case specific, and there are cases that go both ways, depending on the specific facts of each case. See for example: Korman, at paras. 71 -74; Pomozova v. Mann, 2010 ONCA 212, at paras. 15 -17; Farmer v. Phillips, 2019 ONSC 4113, at paras. 21 - 24. Thus, the mother may enrol the child in a private school, and the father may or may not have an obligation to contribute to the tuition.

113Gray J.’s January 24, 2018 Order made no reference to any obligation to contribute to s. 7 expenses, and neither party has sought to vary this. The mother has, at least for now, taken this issue off the table, stating that she is not seeking any contribution for private school tuition from the father.

viii) Section 30 Assessment

114Finally, the mother’s motion asks for another s. 30 assessment, and that both parents share the costs of the assessment equally. Section 30 of the Children’s Law Reform Act provides:

s. 30(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.

(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.

(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.

(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.

(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.

(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.

(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court.

(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.

(9) The report mentioned in subsection (7) is admissible in evidence in the application.

(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.

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1).

(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.

(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.

(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.

115The mother is not seeking an updated assessment by the same professional who prepared the original assessment. She requests a new assessment by a different professional.

116The mother argues that the escalation of conflict between the parties, the concerns raised by Dr. Weiser about the daughter’s continued emotional distress, the daughter’s acting out and aggression when she returns to the mother after weekends with the father, and credible allegations that the father is sabotaging the mother’s telephone calls with the daughter, all combine to merit a new s. 30 assessment.

117Moreover, the previous assessment was conducted from September 2016 to May 2017. At that time the daughter was non-verbal, and the focus of the assessor was on the parenting skills of the parents. Now that the daughter is four years old, the assessor can better consider the emotional health of the daughter.

118The mother also argues that the original assessor did not know the extent of the father’s propensity to lie, and the assessor acknowledged on cross-examination that if it was determined that the father had been lying to him, he would have to re-evaluate his report. In particular, if the assessor knew that the father had a propensity to lie, there might be a concern about the father’s ability to ensure the physical and emotional well-being of the daughter.

119The mother estimates that the cost of a second assessment would be about $35,000 to $45,000 and can be completed in three to four months.

120The father opposes a second assessment. He takes the position that the situation has not changed since the first assessment. Moreover, the mother’s request for a second assessment has already been dismissed by Gray J. in his review decision less than one year ago. In declining to order a second assessment, Gray J. stated, at para. 35 of his review decision:

I decline to make such an order. Assessments of that sort are intrusive and expensive. There has already been one assessment and it was very thorough.

121The father takes the position that he cannot afford to contribute to another s. 30 assessment. If a second assessment is ordered, he argues that it should be paid for by the mother. He also objects to the assessor proposed by the mother.

122In Glick v. Cale, 2013 ONSC 893, at para. 48, Kiteley J. provided a non-exhaustive list of 15 criteria that may be considered in the determination of whether to order an assessment.

123If there had not yet been an assessment, there is little doubt that the application of the Glick criteria to the facts of this case would justify the appointment of a s. 30 assessment.

124The evidence on this motion supports the contention that the parties’ continued conflict may be causing significant emotional problems for their daughter. Their relationship continues to be toxic. The parents have vastly different perspectives on the needs of their daughter and on their respective capacities to respond to those needs. As Gray J. noted in his decision, they disagree about almost everything, and each parent continues to accuse the other of sabotaging the trial judge’s order. Each parent alleges that their daughter is manifesting behaviour that might be associated with stress caused by the behaviour of the other parent. See: Diab v. Cartwright, 2013 ONSC 5678, at para. 30; Sprott v. Ohm, 2016 ONSC 5746.

125The analysis in Glick, however, is designed to apply to a first assessment. The analysis must be adjusted to take into account the fact that a s. 30 assessment was already ordered in this case, and what is being sought is a second s. 30 assessment. While a s. 30 assessment may provide valuable information for a court, the law of diminishing marginal returns will apply to subsequent reports.

126Accordingly, the questions before me are what has changed since the original s. 30 assessment and Gray J.’s review decision in November 2018 that would merit the appointment of a second assessment today? Will a second assessment be able to provide the court with information that was not previously available and that could not be ascertained without a second assessment?

127While a second assessment might provide some useful information, I must conclude that it is not merited in this case for the following reasons:

(i) Allegations of Interference with Mother’s Telephone Communications

128One of the key issues raised in the motion before me is the mother’s allegation that the father has been interfering with her telephone and Skype communications with her daughter when the daughter is staying with the father. This has been an on-going issue, and was dealt with by Gray J. in his review decision in November 2018. Gray J. stated at para. 31:

I do not accept [the father’s] explanation that [the daughter] does not want Skype time with her mother. [The father] is an adult, and it is up to him to arrange Skype time, since it is in [the daughter’s] best interests that it occur.

129As a result, Gray J. ordered (at para. 32) that the father arrange for Skype communication between the mother and the daughter on each day of visit with the father that the mother has not already had the daughter in her care (in other words, weekends and holidays). The availability of these calls was the primary reason that the Court of Appeal concluded that Dr. Weiser’s concerns regarding the daughter’s discomfort with long absences from the mother were “mitigated” (at para. 11).

130The mother’s affidavit states that the father has been deliberately sabotaging her conversations with her daughter by calling and hanging up after a few seconds, or calling and pressing mute so that the daughter cannot speak to the mother, but the call logs look as though the call has been continued for some time. The mother alleges that sometimes the father calls when the daughter is not available, then hangs up when the daughter comes into the room, or he will initiate the call and distract the daughter by putting on a video game for her to play. The mother has provided some evidence to support these allegations, although the father denies them.

131Does the mother’s evidence establish the father’s noncompliance, or is it simply the result of a bad Skype connection? Since this is an interim motion, the parties were not subject to cross-examination and it would be inappropriate for me to make any factual findings on this issue.

132These are, however, serious and troubling allegations. Speaking for myself, I would not need a professional appointed under s. 30 of the Children’s Law Reform Act to tell me that a parent who engages in such deceitful behaviour is unable and unwilling to satisfy the needs of the child. If these allegations are substantiated, they will almost certainly lead to the curtailment of the father’s access with the daughter.

133But a professional appointed under s. 30 cannot assess which of the parents is telling the truth – that is a question for the trier of fact. The credibility of a witness is exclusively reserved for the trier of fact. As noted by the Supreme Court of Canada in R. v. Marquard (1993), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193, at p. 228, it is “a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion”. Accordingly, it is not clear what value will be added by a second assessment.

(ii) Expenses Related to the Second Assessment

134Section 30 assessments are very expensive. I am advised by counsel that the first s. 30 assessment in this case cost approximately $80,000. The cost was divided equally by the parties. While it is always useful for the court to have the best and most up-to-date evidence available, this must be tempered by the reality that the parties to this litigation do not have unlimited financial resources. Indeed, they have been haemorrhaging money since this litigation began. The father claims that he cannot afford to contribute to another assessment.

135Even if the second assessment can be prepared for half the amount of the first, it is still a significant financial burden.

136While the Court can order the father to pay a proportion of the fees for the assessment under s. 30(12) and (13) of the Children’s Law Reform Act, “an order requiring a party to pay the fees and expenses of an assessor, mediator or other expert named by the court” is defined as a “payment order” under s. 2 of the Family Law Rules, and cannot be enforced by a contempt motion (Family Law Rules, s. 31(1) and s. 26(4)). Accordingly, I am hesitant to impose an order of this nature where it is not on the consent of both parties.

137While I could order that the mother pay for the entire assessment, that is not substantially different than the mother simply calling her own expert witness(es) to testify. For example, Dr. Weiser has been qualified as a participant expert in these proceedings. Dr. Weiser can testify as the daughter’s treating psychologist regarding her psychological assessment, and any concerns she has observed regarding the effect of the current parenting schedule on the daughter.

138The availability of a treating psychologist presents an alternative means of ascertaining whether the child is manifesting behaviour that might be associated with stress caused by the conflict between the parents, or the conduct of one parent. As such, the advantages of appointing a professional under s. 30 are correspondingly reduced.

139Accordingly, I conclude that this is not a proper case in which to order a second s. 30 assessment.

ix) Conclusion

140In summary, this Court orders:

a. The mother’s motion to divide the father’s 14 consecutive day summer vacation in July/August 2019 into two periods of no more than 7 consecutive days is dismissed;

b. The father’s 14 consecutive day summer vacation will begin on Wednesday, August 14, 2019, and end on Tuesday, August 27, 2019, at 7:00 p.m.;

c. The mother will have the weekend of August 10, 2019 and the long weekend of August 31 - Sept. 2, 2019 as indicated on Schedule A appended to this decision;

d. The mother will have 10 consecutive days vacation with the daughter during the month of July/August 2020;

e. The mother’s motion for an Order that weekend parenting will alternate between the parties is granted commencing the weekend of September 7, 2019, which is the father’s weekend. The next weekend - September 14, 2019 - will be the mother’s weekend, and so forth;

f. Holiday Monday will go to whichever parent has the child that weekend, except for Easter Monday and Thanksgiving, which will go with the father as per para. 12 of the January 24, 2018 Order;

g. The father’s motion to de-register the daughter from enrolment in Bialik Hebrew School for September 2019, or to transfer decision-making authority over education to the father, is dismissed;

h. The father’s “March Break” will occur during the Passover Break in March/April, subject to the mother’s access on the first two nights of Passover in accordance with para. 13 of the January 24, 2018 Order, which in turn is subject to para. 15 of the Order dealing with holiday conflicts;

i. The mother’s motion for an Order for an assessment under s. 30 of the Children’s Law Reform Act is dismissed.

141The parties have had divided success on these motions. If the parties cannot agree on costs, the Applicant may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 25 days of the release of this decision, and the Respondent may provide responding submissions on the same terms within 20 days thereafter. The Applicant may file reply submissions of no more than 2 pages within a further 15 days.

Schedule A August Parenting Schedule

Sunday	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday
				1	2	3
4	5	6 Father from 3:00 p.m. until 7:00 p.m.	7	8 Father from 3:00 p.m. to 7:00 p.m.	9	10 Mother
11 Mother	12 Mother	13 Father from 3:00 p.m. until 7:00 p.m.	14 Father Summer Holiday commencing at 8:00 a.m. Day 1	15 Father Summer Holiday Day 2	16 Father Summer Holiday Day 3	17 Father Summer Holiday Day 4
18 Father Summer Holiday Day 5	19 Father Summer Holiday Day 6	20 Father Summer Holiday Day 7	21 Father Summer Holiday Day 8	22 Father Summer Holiday Day 9	23 Father Summer Holiday Day 10	24 Father Summer Holiday Day 11
25 Father Summer Holiday Day 12	26 Father Summer Holiday Day 13	27 Father Summer Holiday Day 14 Ends at 7:00 p.m.	28 Mother	29 Father from 3:00 p.m. until 7:00 p.m.	30 Mother	31 Mother
September 1 Mother	September 2 Mother	September 3 With Father from after school until 7:00 p.m.	September 4 Mother	September 5 With Father from after school until 7:00 p.m.	September 6 With Father from after school for weekend	September 7 Father (Return to schedule until further court order)

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Robin Allan McLean Brown Applicant

– and –

Jennifer Laura Kagan (Brown) Respondent

REASONS FOR DECISION

Justice R.E. Charney

Released: August 27, 2019

The very existence of the phenomenon of interfaith partnership or marriage implies the potential for the non-mono-religious upbringing of children. As suggested above in the context of Young and P. (D.), the exposure of children to different influences may serve their identity interests in a society that contemplates and exemplifies the complex overlap of communities.

Footnotes

1. 1At one point the father requested that his 14 day holiday follow immediately after one of his weekends, hence the reference to 17 days.
2. 2See for example: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 and Adler v. Ontario, [1996] 3 SCR 609, 1996 CanLII 148 (SCC).
3. 3I recognize that in situations of shared decision-making, courts are sometimes called on to serve as the tiebreaker when parents cannot reach agreement. Courts enter such frays reluctantly. The decision with respect to choice of school, when parents with shared decision-making disagree, is ultimately a matter of judicial discretion: Thomas v. Osika, 2018 ONSC 2712, at para. 37; Ashalan v. Taleb, 2012 ONSC 4746, at para. 32. In these cases, maintenance of the status quo, if there is one, is often an overriding consideration (Ursic v. Ursic, 2006 CanLII 18349 (ONCA), at para. 32). While this is usually explained as a means of promoting stability, it also has the advantage of being one of the only objectively verifiable criteria available to the court.
4. 4I use the words “cultural” and “culture” in the broad sense to include culture based on heritage, ethnicity, and language.
5. 5For a comprehensive and thoughtful analysis of the Supreme Court of Canada’s decision in Young and other cases dealing with custody, access and religion, see Shauna Van Praagh, “Religion, Custody and a Child’s Identities” (1997) 35 O.H.L.J. 309. I adopt the following statement from that article, at p. 367: