COURT FILE NO.: FS- 18-006733

DATE: 20191101

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Juan Andres Hauber, Applicant

AND:

Kathryn Sussan, Respondent

BEFORE: C. Horkins J.

COUNSEL: Martha McCarthy and Maureen Edwards, for the Applicant

Jesse Rosenberg, for the Respondent

HEARD at Toronto: October 31, 2019

REASONS FOR DECISION

Overview

[1] The parties separated in October 2015. They have one child who is now 8 years old.

[2] The Applicant father commenced this application in November 2018. He seeks an order for joint custody and equal parenting time.

[3] The father brings a motion for an order under s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 as am, specifically that a custody and access assessment be conducted by a qualified person agreed upon by the parties. The father states that an assessment is required because the parties’ relationship is marred with high conflict and disagreements over daily decisions, they have concerns about the other’s ability to parent, and the child is manifesting behaviour that might be associated with stress from the conflict.

[4] It is the mother’s position that the father has not established a need for a s. 30 assessment, and it would not be in the best interests of the child. She describes the father’s motion as overreaching and disproportionate to the parenting issues.

Legal Framework

[5] Subsection 30(1) of the Children's Law Reform Act gives the court the authority to grant an assessment as follows:

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.

[6] Pursuant to s. 19(a) of the Children's Law Reform Act, applications seeking custody and access “will be determined on the basis of the best interests of the children”.

[7] Since the decision in Glick v Cale, 2013 ONSC 893, it has been clear that the presence of a clinical issue is not required to order an assessment. Of course, if a clinical issue is present this is a relevant factor to consider in deciding whether to order the assessment. It is also clear that s. 30 assessments should not be routinely ordered.

[8] In Glick v Cale at para 48, Kiteley J. provided the following non-exhaustive list of criteria to assist the court in deciding whether to order a s. 30 assessment:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child's needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining "high conflict", is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent's ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

[9] With the benefit of this criteria, the court must decide if the request for the assessment is supported by the evidence.

Analysis

[10] The evidence does not support the father’s request for a s. 30 assessment. I have considered the criteria in Glick that are relevant to this case. My reasons follow.

[11] The father has the financial resources to pay for an assessment and it would not delay this application. The parties have had one case conference and are in the process of questioning. While these factors favour an assessment, the following analysis does not.

[12] The father played an active role in the child’s life before separation. There is no evidence that they had any serious difficulty parenting before separation.

[13] Since separation, there has been conflict between the parties. However, this is not a high conflict family. The conflict that they created does not rise to the level that would lend support for a s. 30 assessment. The evidence does not reveal anything complicated about the family situation and the parents’ conduct.

[14] There is no clinical diagnosis that might impact on the capacity to parent.

[15] The parties have each filed various emails and texts between them to prove their position on this motion. Like many cases in Family Court, there are communications that demonstrate respect and an ability to co-parent and communications that reveal conflict and a disrespectful attitude to the other parent.

[16] The parties demonstrated an ability to communicate effectively when they choose a new school for their child. This was an important decision.

[17] There is no question that the parents can and must communicate with each other in a more respectful manner. This is the approach they must follow for all communications. There is no reason why they cannot do so.

[18] The father says that the mother interferes with his parenting time and does not respect his ability to parent. Some of the mother’s emails support his complaints. This, however, is not a pervasive problem. If the parents had a detailed parenting plan, and one that recognized the father’s request for more time, this would help to eliminate the father’s concerns.

[19] The father states that in the past two years he has noticed a change in the child’s mood that he attributes to conflict that the child is exposed to. However, there is very little evidence of this exposure and no objective evidence that this has led to a change in the child’s mood.

[20] The father believes that the mother is grilling the child about her time with her father and exposing her to the dispute between them. He relies on an exchange of text messages with the mother about the child’s birthday party last year. The father told the mother that his partner of four years would be coming to the child’s party. This led the mother to accuse the father of being manipulative and not acting in the child’s best interests. The text communications suggest that the child was involved in this dispute.

[21] The objective evidence shows that regardless of the conflict, the child is thriving in school and in her extra-curricular activities. The school report cards are filled with praise for the child. She excels academically, works well with others, is respectful of her classmates, displays a positive attitude and enthusiasm and often takes a leadership role. No concerns about the child are documented in the school records. The child’s piano teacher describes the child as positive, intelligent, sensitive and funny.

[22] The child’s family doctor has confirmed that the child is healthy and well-adjusted. There have been no psychological complaints and the doctor has no concerns about the child’s psychologic or physical development.

[23] A s. 30 assessment is intrusive, and the evidence does not show that this intrusive tool is in the child’s best interests.

[24] The factual context of this dispute reveals the type of conflict that is typical in a custody, access and parenting dispute. Courts frequently decide these types of cases without a s. 30 assessment. In a case like this where the court can reasonably decide the issues without an assessment, the assessment should not be ordered (Baillie v. Baillie, 2012 ONSC 3728 at para. 38).

[25] The parties should devote their time to negotiating a parenting plan that will incorporate the father’s request for more time. As the mother states in her factum, she is “happy to facilitate an increase” in the father’s parenting time. To ensure that this positive step happens, I have made orders that require them to address this issue.

Conclusion

[26] I make the following orders:

(i) The applicant’s motion is dismissed.

(ii) Costs to the successful party are fixed at $10,000 on consent. The applicant shall pay the respondent her costs of this motion fixed at $10,000 all inclusive.

(iii) Prior to the case conference scheduled for November 13, 2019, the parties shall exchange parenting plans and file them with the court no later than November 12 at 10 a.m. The parties shall be prepared to discuss and negotiate the resolution of a parenting plan at the case conference.

C. Horkins J.

Date: November 1, 2019