COURT FILE NO.: FS-19-94852-00
DATE: 2020 08 13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kristin Goncalves Applicant
David Goncalves Respondent
BEFORE: Bloom, J.
COUNSEL: Jesse Rosenberg, for the Applicant
Debra L. Snider, for the Respondent
HEARD: 2020/08/06
E N D O R S E M E N T
I. INTRODUCTION
[1] There are before me cross-motions. As her motion was defined in oral argument, the Applicant seeks an order under s. 30 of the Children’s Law Reform Act for an assessment in respect of the two children of the marriage, Luke Goncalves born February 23, 2013 and James Goncalves born September 27, 2016, an order for variation of the interim without prejudice consent orders of Justice Ricchetti of April 24, 2020 and May 4, 2020 regarding parenting of the children, and an order dispensing with the consent of the Respondent for the Applicant to arrange child counselling and\or therapy for Luke. The Respondent’s motion as defined in oral argument seeks variation of the interim without prejudice consent order of Justice Ricchetti dated April 24, 2020 relative to parenting by the Respondent of Luke, and variation of the interim without prejudice consent order of Justice Ricchetti dated May 4, 2020 relative to parenting by the Respondent of James.
[2] I have considered the materials before me, as well as the oral submissions of counsel.
II. BACKGOUND FACTS
[3] The parties were married on June 28, 2008 and separated on September 19, 2018. There is a high degree of conflict between the parties in respect of the issues in their family law litigation.
[4] James has autism spectrum disorder.
[5] The Amended Application makes claims, inter alia, under the Divorce Act.
III. ANALYSIS
A. The Issue of an Order for a S. 30 CLRA Assessment
[6] The Amended Application makes claims both for an investigation and report under s. 112 of the Courts of Justice Act and for a s. 30 assessment order under the CLRA.
[7] The Respondent consented to the s. 112 order in oral argument, and opposed the s. 30 order.
[8] The Applicant cited Glick v. Cale, 2013 ONSC 893 as to the factors to be considered in determining whether to grant an order for a s. 30 assessment. Included were the cost of the assessment, and whether the parties have the financial resources to pay it.
[9] In the case at bar the Applicant accepts that the parties would likely have to draw on their equity in the matrimonial home to pay for a s. 30 assessment. Further, the Respondent has testified in his affidavit dated July 29, 2020 to his difficult financial position.
[10] Accordingly, I make an order for a s. 112 Courts of Justice Act investigation and report; and dismiss the Applicant’s motion for an order for a s. 30 assessment without prejudice to her being able to bring on a motion for the same relief, in the event that a the Office of the Children’s Lawyer refuses to do an investigation and report under s. 112. The parties are further ordered to prepare with the court officials the appropriate order and any other documentation for a s. 112 investigation and report; the papers may be forwarded to me through my assistant by the court officials for my approval and signature, as necessary.
B. Motions to Vary the Orders of Justice Ricchetti
[11] The principles applicable to variation of Justice Ricchetti’s orders are set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The Moving Party must satisfy me first that there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the child’s needs; that the change has materially affected the child; and that the change was unforeseen or could not have been reasonably contemplated by the judge who made the initial order. If that standard is met, the motions judge is required to embark on a fresh assessment of what is in the child’s best interests in all of the circumstances, both old and new.
[12] In the case at bar neither the Applicant nor the Respondent has satisfied the standard required at the first step of the Gordon v. Goertz test in respect of either order of Justice Ricchetti. Accordingly, I dismiss the motions for variation of both parties.
C. Motion to Dispense with the Consent of the Respondent for the Applicant to Arrange Counselling and/or Therapy for Luke
[13] The Applicant bears the burden on the balance of probabilities to prove that the order she seeks for counselling and/or therapy for Luke without the Respondent’s consent is necessary in Luke’s best interests. I am not satisfied that the Applicant has discharged this burden on the evidence before me. In particular, I am not satisfied that the Applicant has completed reasonable efforts through counsel to secure the Respondent’s consent. Her motion as regards dispensing with that consent is dismissed.
IV. COSTS
[14] I will receive written submissions as to costs of no more than 3 pages, excluding a bill of costs, within 14 days of release of this endorsement. The parties are to serve and file their submissions by one e-mail to the other party and my assistant, Sara Stafford, at Sara.Stafford@ontario.ca. There shall be no reply.
Bloom, J.
DATE: August 13, 2020
COURT FILE NO.: FS-19-94852-00
DATE: 2020 08 13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kristin Goncalves
David Goncalves
BEFORE: Bloom, J.
COUNSEL: Jesse Rosenberg, for the Applicant
Debra L. Snider, for the Respondent
ENDORSEMENT
Bloom, J.
DATE: August 13, 2020