Court File and Parties

COURT FILE NO.: FC-19-287 DATE: July 14, 2020 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shannon Marie May Donaldson (McGuire), Applicant AND: Ian James Hill, Respondent

COUNSEL: M. Peter Sammon for the Applicant S. Pickens for the Respondent

BEFORE: Mr. Justice M. James

HEARD: July 8, 2020

Endorsement

Introduction

[1] The respondent father, Ian Hill, has brought a motion to change the custody provisions of a final order from 2013 and within that proceeding has requested an order for an assessment pursuant to section 30(1) of the Children’s Law Reform Act.

[2] The children in this case are Jayden, age 12 and Richard, age 10.

[3] Their father says an assessment of the needs of the children will assist the court in determining the merits of his request to change the custody and parenting arrangements.

[4] Jayden and Richard have lived primarily with their mother Shannon McGuire since the parties separated in 2012. She has sole custody pursuant to a consent order agreed to by Mr. Hill in 2013.

[5] In 2016 Mr. Hill brought a motion to change the 2013 order which was resolved with another consent order expanding Mr. Hill’s access but leaving custody unchanged. The parties also made an agreement regarding payment of the child support arrears.

[6] The present motion to change was initiated in May, 2018 by Mr. Hill. Initially he requested a change to the access arrangements but later in 2018 he amended the relief sought to request a change in custody and primary parenting after Ms. McGuire made a claim to increase child support based on imputed income.

[7] Mr. Hill married his present spouse in 2018 as well. They live in Carp, Ontario. Ms. Hill has three children from a previous relationship who reside primarily with her and Mr. Hill. Mr. Hill also has two teenager daughters with whom he has regular access.

[8] Mr. Hills owns and operates a roofing business in the Ottawa area. He made about $13,000.00 in 2018 and estimated the same amount for 2018.

[9] At present Ms. McGuire is not employed. She resides with her husband and the boys in Eganville, having moved to this area from the Municipality of Trent Hills in 2019.

Mr. Hill’s Position:

[10] Mr. Hill’s concerns include the following:

a. Ms. McGuire’s pattern of frequent moves and unstable relationships; b. The boys have constantly expressed a preference to reside with him; c. Ms. McGuire engages the boys in discussions about adult issues and is untruthful when discussing Mr. Hill; d. She interferes with his access and prevents the boys from having full communications with him; e. Ms. McGuire does not communicate with him about the children; f. He is concerned about safety issues in Ms. McGuire’s home.

[11] Mr. Hill says that an assessment would be helpful to the court. It would assist in determining whether Mr. Hill’s allegations are accurate. It would give an accurate indication of the boys’ views and preferences. It would provide insight regarding how Ms. McGuire’s conduct is affecting the boys and how well or poorly they are coping.

[12] He says that Mr. Adam Filleul, M.S.W., has agreed to prepare the assessment and can begin work immediately. Mr. Hill is prepared to pay the cost of the assessment. He would agree to an assessment by any other reasonably-competent assessor.

Ms. McGuire’s Position:

[13] Ms. McGuire’s position and her response to Mr. Hill’s contentions are as follows:

a. He has failed to demonstrate a material change in circumstances from when the previous order was made which is a condition precedent to his entitlement to request a change in the parenting arrangements; b. Mr. Hill is acting in bad faith because the request to change custody was triggered not by a genuine concern for the boys but rather by her request to increase child support; c. There is independent, third party evidence that Mr. Hill is manipulating the boys and attempting to alienate them from Ms. McGuire; d. The children have been in her primary care since separation in 2012; e. Mr. Hill discusses his dispute with Ms. McGuire with the boys; f. He has overheld the children and taken them out of the country without her knowledge or approval; g. Mr. Hill’s allegations are both false and unsubstantiated.

[14] Ms. McGuire says that the request for an assessment is merely a fishing expedition. Also, she points out that this proceeding is not an original application. Custody and access were previously discussed and agreed to on two prior occasions.

Issue

[15] Has Mr. Hill demonstrated that an assessment is warranted in these circumstances?

Discussion and Analysis

[16] Assessments, while not binding on the judge deciding a matter, can be useful, even persuasive, in assisting the court to determine whether a proposed custodial arrangement would be beneficial to a child. They combine professional training with investigative powers to produce first-hand, independent information and insights not otherwise available. For various reasons, however, not the least of which is their cost and the time necessary to prepare, they are not routinely ordered. A judge must be satisfied the cost/benefit considerations clearly favour the ordering of an assessment. The importance of a cautious approach to ordering assessments was explained by Blishen J. in [Glance v. Glance (2000) CarswellOnt 3169 at para 12]:

Assessments by their very nature are intrusive. They are also expensive and time consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment. The paramount concern must be the best interests of the child. The order for an assessment must have a proper evidentiary basis and it must be in the best interests of the child to order such an assessment.

[17] In addition, they should not be used to find evidence to make a case or to enlist the assessor to provide support for the parent’s factual narrative (see Jonkman v. Murphy, 2011 ONSC 3917).

[18] Some judges favour their use in cases involving a concern regarding parental alienation (see Ryan v. Scott, 2013 ONSC 4759 at para. 27; [Stewart v. Stewart (2006) CarswellOnt 8273]).

[19] The parties have presented differing versions of events and factual contentions. It is difficult, especially on the basis of affidavit evidence only, to determine what is truthful and what is not.

[20] I have concluded that an assessment should not be ordered in this case for the following reasons.

[21] There is a long-standing status quo of primary parenting by Ms. McGuire. This status quo should not be altered unless there is compelling evidence that a change is in the children’s best interests.

[22] This is the third time these parties have been before the court. Mr. Hill agreed to custody and primary parenting to Ms. McGuire on two prior occasions. Multiple proceedings on the same issue are to be discouraged.

[23] The independent evidence expressing a concern regarding manipulation of the boys by Mr. Hill weighs against his assessment request.

[24] There is a reasonable possibility that since Ms. McGuire is now married to Mr. McGuire, which is indicative of greater permanency and stability going forward, Mr. Hill’s understandable concerns regarding her previous frequent moves will diminish.

[25] Mr. Hill’s allegations that Ms. McGuire interferes with and attempts to overly-control his access are a concern, even if he has brought some of this on by his own choices. The parent with primary parenting responsibility has a duty to promote, encourage and foster positive connections between the children and the other parent by way of different means of communication, not just in-person contact. Restrictions, rigidity and interference with access rights by the primary parent sometimes contributes to resentment and defiance on the part of the children.

[26] Assuming without deciding that the boys have indicated a preference to Mr. Hill that they want to reside with him, this is not synonymous with their best interests. Nor does it follow that they are expressing the same sentiment to their mother. This is both common and understandable. Children love both parents. Parental discord isn’t their choice. They would much rather that everyone got along. Unfortunately, prolonged parental conflict can have long-term negative consequences for children.

[27] I acknowledge that Mesbur J., an experienced family law judge, found that an assessment was warranted in the case of Ryan v. Scott, previously referred to, on facts that were somewhat similar to the situation here. I would distinguish that case, however, by noting that the order sought to be changed in that case had a built-in review provision and there was not such a long-standing status quo of primary parenting by one parent.

Disposition

[28] The motion is dismissed.

[29] On the issue of costs, Ms. McGuire may deliver a proposed bill of costs and brief written costs submissions within 15 days and Mr. Hill will have 15 days to respond.

Justice M. James Date: July 14, 2020