Court File and Parties

COURT FILE NO.: FS-17-416379

DATE: 2019-09-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Neil Closner AND: Sherri Closner

BEFORE: J.T. Akbarali J.

COUNSEL: Gary S. Joseph and Aaron Mastervick for the Applicant Kristen Normandin and Jared Teitel for the Respondent

HEARD: September 19, 2019.

ENDORSEMENT

[1] The parties to this litigation are the parents of a five-year-old girl, Q. Theirs is a high conflict dispute. The record reveals persistent and serious problems with their ability to co-parent successfully. The record also suggests that Q is suffering as a result of the parties’ conflict. Currently, she is experiencing regression in her bowel control and is undergoing counselling in a closed process.

[2] The applicant father, Mr. Closner, sought a s. 30 assessment in his application for divorce. Ultimately the respondent mother, Ms. Lavine, consented, and the parties engaged Mr. Howard Hurwitz to complete the assessment. Mr. Hurwitz’s report is dated January 15, 2018. In it, he made a series of recommendations with respect to parenting time and recommended a parallel decision-making scheme. He also stated:

In the event that this parallel parenting arrangement is not successful, and, if the parental conflict does not subside after the conclusion of this Section 30 assessment, an updated assessment should be considered with a view to determining any changes to the custody, decision-making and residential schedule provisions of this parenting plan.

[3] The parties did not adopt the parallel parenting approach recommended by Mr. Hurwitz. Rather, they appear to be trying to deal with parenting decisions jointly, with little success.

[4] The parties have implemented the parenting time regime that Mr. Hurwitz proposed as the second phase of a stepped-up schedule. This regime was implemented after a contested motion before Shore J. in November 2018. In her endorsement, Shore J. indicated that if the parties did not proceed to trial in 2019, they should consider obtaining an updated assessment from Mr. Hurwitz. The parties are now scheduled to proceed to trial on January 20, 2020.

[5] In early July 2019, Ms. Lavine proposed that the parties seek an updated assessment from Mr. Hurwitz, who was ready to commence work in August 2019. Mr. Closner disagreed.

[6] Shore J. has been acting as case management judge for the parties. Shore J. gave leave to the respondent, Ms. Lavine, to bring this motion for an updated report.

[7] Ms. Lavine argues that the parties’ conflict has continued, such that the conditions Mr. Hurwitz identified as making an updated assessment appropriate are present. She argues that the court should have the most up-to-date information available to it at trial. She notes that, while Q is in counselling, the process is closed. She argues that the only way for the court to obtain independent evidence about Q’s circumstances is through an updated report.

[8] Mr. Closner argues that Mr. Hurwitz has only been able to state that he will endeavor to complete the report by December 2019, but factors outside his control may delay the report into January 2020. The report would then be served outside the timelines required by the new Family Law Rules. He argues that there is nothing new in the parties’ relationship; the conflict Mr. Hurwitz observed when he did his first report continues. He states that Mr. Hurwitz can give viva voce evidence about whether the events that have transpired since he completed his report would change his opinion or recommendations. He argues that Q should not be subjected to another assessment which, by its nature, will drag her back into the parties’ dispute.

[9] In response, Ms. Lavine argues that Shore J. can deal with any timing issues with respect to the delivery of the report in her capacity as case management judge. She argues that Mr. Closner should not be able to refuse the report and rely on the delay created by his refusal, when the updated report has been suggested by both Shore J. and Mr. Hurwitz. She argues that the communications between the parties demonstrate that she is trying hard to involve Mr. Closner in parenting decisions in an appropriate and respectful manner, but that he insists on ramping up the conflict between them at every turn.

[10] The parties agree that they can afford the cost of an updated assessment.

[11] They also agree that the question is not whether the factors that justify a court ordering a s. 30 assessment are met, because a s. 30 assessment has already been done. The question is whether it should be updated.

[12] Updated assessments may be ordered where there have been changes since the last assessment: see, for example, Goodyear v. Burton, 2016 ONSC 4583, at para. 66. In Berman v. Berman, 2015 ONSC 7194, Charney J. held that to order an updated assessment over the objection of one of the parties would require “significant developments” since the original assessment was completed.

[13] Mere passage of time is not enough to order an updated assessment. Changes of circumstances can be brought to the attention of the court through viva voce evidence: Zapora v. Zapora, 1991 CarswellOnt 3490, at para. 20.

[14] In Kramer v. Kramer, 2003 64318 (ON SC), 2003 CarswellOnt 1228 at para. 36, the court opined that a s. 30 assessment should not be ordered if the court is in a position to reasonably decide the issues without the assistance of the assessment. Although that case dealt with the original assessment, in my view, it is consistent with Goodyear and Berman to apply the same standard to an updated report, that is, an updated report should not be ordered if the court is in a position to reasonably decide the issues without it.

[15] By their nature, assessments are intrusive. The paramount concern is always the best interest of the child: Glance v. Glance, 2000 CarswellOnt 3169, at para. 12.

[16] Having regard to these principles, I conclude that an updated report should not be ordered. I reach this conclusion because:

a. I am not satisfied that the current conflict between the parties is a change, or significant development, since the original report was completed. Their relationship has remained high conflict, as it was prior to Mr. Hurwitz’s original report. Nor am I convinced that Q’s circumstances are changed to such an extent as to justify an intrusive report.

b. The parties never implemented the parallel decision-making regime recommended by Mr. Hurwitz. In my view, the conditions Mr. Hurwitz described as warranting a consideration of whether to update the s. 30 assessment have not yet come to pass. Moreover, neither Mr. Hurwitz nor Shore J. did anything more than suggest that the parties consider whether to update the assessment.

c. While Ms. Lavine suggests Mr. Hurwitz could speak to Q’s counsellor rather than involve Q in the assessment process, it is not at all clear that this would be possible given that Q’s counselling is closed. I am thus concerned about the impact on Q on being further involved in the litigation through an updated assessment process.

d. The parties have a significant record of their interactions and can adduce evidence of their conflict, and of Q’s circumstances, by viva voce evidence at trial. I note that Mr. Closner has argued that Mr. Hurwitz will be free to give evidence as to his opinions and recommendations based either on hypotheticals or on the basis of evidence led at trial, including email chains between the parties, such that any revised opinion or recommendation he would make can come to the attention of the trial judge. Mr. Closner specifically argued that this was preferable to a late delivered report, even if he learned of any revised opinion or recommendation of Mr. Hurwitz at trial.

e. In my view, the trial judge will be in a position, given Mr. Hurwitz’s original assessment and the other evidence available to the parties to lead at trial, together with Mr. Hurwitz’s oral evidence, to determine the custody and access issues without the need for an updated assessment.

[17] I have noted the risk of a late delivered report if an updated assessment is ordered, but in my view, this risk is not determinative, especially in view of Mr. Closner’s submission, which I have already noted, that he considers it preferable for any changes in Mr. Hurwitz’s opinions and recommendations to be adduced through oral evidence at trial rather than in an updated report. I am confident that the parties could cope with the challenges of a late report without requiring a delay in the trial. However, it is imperative that the trial proceed as scheduled, for Q’s sake.

[18] As a result, I dismiss the respondent’s motion.

[19] Mr. Closner seeks his full indemnity costs of $18,352.05, inclusive of HST and disbursements. He points to an offer to settle dated September 13, 2019, which offered to dismiss Ms. Lavine’s motion with partial indemnity costs, or full indemnity costs if the offer was accepted after September 18, 2019. He states that he is the successful party on the motion.

[20] Ms. Lavine argues that, because my endorsement makes clear that Mr. Hurwitz can provide any revised opinions or recommendations that he has in his oral evidence, the issue on this motion is still unfolding. She argues that costs ought to be reserved to the trial judge. Alternatively, she argues that, especially in view of the comments from Shore J. and Mr. Hurwitz, she acted reasonably in seeking an updated report. If I am inclined to award costs, she states I should award no more than $2,500.

[21] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at. para. 10. The cornerstone of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 159, at para. 12.

[22] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[23] Pursuant to r. 24, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10.

[24] The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of a number of enumerated factors as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.

[25] There is no general approach in family law of “close to full recovery costs”: Beaver, at paras. 9-13. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, para. 13.

[26] I note the following factors with respect to costs:

a. Mr. Closner was the successful party on the motion.

b. However, while I did not find in her favour, Ms. Lavine’s motion was reasonably brought. The comments of Shore J. and Mr. Hurwitz provided support for the desirability of an updated s. 30 assessment.

c. When one considers the costs component of Mr. Closner’s offer to settle, it is not correct to say he has beaten it. There is no basis to award full indemnity costs. Even if I had found the offer was beaten, I still would not have awarded full indemnity costs for the motion, because the offer was served less than a week before the motion, after much of the cost of the motion had already been incurred.

d. Each party has similar costs. I thus conclude that Mr. Closner’s costs were within the reasonable expectations of Ms. Lavine.

e. The time spent by each party was similar. The motion records are lengthy. Both parties’ counsel were of great assistance to the court, and delivered motion material and factums of high caliber. It appears the parties have the means to fund counsel’s efforts. However, at the end of the day, this remains a motion for an updated s. 30 assessment, and in my view, the motion could have been brought in a simpler manner. This is not meant as a criticism of counsel; rather, I note it because costs must be proportionate to the issue, and fair and reasonable. Just because the parties are prepared to fund the costs for a Cadillac motion to update a s. 30 assessment does not mean the court should order costs at that level.

f. Ms. Lavine argues that Mr. Closner’s behaviour and the tone of his response to her motion materials are deserving of sanction in the form of reduced costs. I disagree. Both parties have levelled accusations at the other. Whether they are borne out at trial or eventually found to be relevant to the custody and access determinations remains to be seen. At this point, I am not prepared to conclude either party behaved inappropriately in the conduct of the motion.

[27] Taking these factors into account, I conclude costs of $10,000 all inclusive are fair and reasonable. Ms. Lavine shall pay Mr. Closner this amount within thirty days.

J. T. Akbarali J.

September 19, 2019.