COURT FILE NO.: FS-18-299
DATE: 2020 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KIRSTEN ANN ROSS
Gabrielle Pop-Lazic, counsel for the Applicant
Applicant
- and -
ANDREW ALEXANDER D’OLIVEIRA
Marcy Segal, counsel for the Respondent
Respondent
Grace Sun, counsel for the OCL
HEARD: November 23, 2020, via video conference
REASONS FOR DECISION
Daley J.
[1] In this proceeding the applicant seeks an order pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (CLRA) appointing a qualified person to assess and report to the court on the needs of the parties’ child, Isabella Faith D’Oliveira (“the child”) born May 29, 2009.
[2] This action is scheduled to proceed to trial in May 2021.
[3] For the reasons that follow, the applicant’s motion is dismissed.
BACKGROUND & EVIDENTIARY RECORD:
[4] The parties separated in November 2015 at which time the child was approximately 6 ½ years of age.
[5] They agreed on a 60/40 parenting schedule through to July 2016.
[6] In July 2016 the parties entered into a partial separation agreement related to financial issues following the breakdown of their marriage. In her pending application the applicant does not take issue with any of the terms agreed to in the partial separation agreement from July 2016.
[7] In April 2017 the parties executed a second partial separation agreement dealing specifically with parenting issues. The parties received independent legal advice prior to the execution of that agreement.
[8] The applicant instituted the within proceedings in July 2018, approximately 15 months following the execution of a formal parenting agreement.
[9] During the period from August 2018 to August 2019 the parties agreed to several parenting schedules, without the need for a court order.
[10] Due to the child’s expressed wishes to no longer participate in spending time with the applicant, pursuant to a request by the court, the Office of the Children’s Lawyer was appointed in February, 2019, for the purpose of providing legal counsel to represent the child and as well to involve a social worker to conduct an assessment of the child’s needs, wishes and preferences and to report to the court on same.
[11] Todd Perrault, clinical investigator with the Office of the Children’s Lawyer, was requested to interview and determine the child’s views and preferences and provide evidence to the court with respect to same.
[12] Counsel Ms. Grace Sun was also appointed by the Office of the Children’s Lawyer as counsel for the child to represent her interests in these proceedings.
[13] Todd Perrault has filed a very comprehensive and detailed affidavit in respect of this motion which was sworn on November 10, 2020 and wherein he outlines in full detail his involvement with the child and with the applicant, the respondent, the child’s therapist, her teacher and numerous collateral sources as part of his investigation, which are detailed in particular at paragraph 7 of his affidavit.
[14] In his uncontradicted affidavit Todd Perrault provides evidence with respect to the applicant and her living situation with her new partner as well as details as to the interaction of the child with the applicant and her partner, including the conflict that has arisen as between these parties.
[15] Further in his affidavit this witness states that the child has informed him that she does not like the applicant’s boyfriend for various reasons including that he yells at his own daughters and as well calls the child a “liar” and refers to her father in very derogatory terms. The child further reports that she feels her mother does not care for her and examples with respect to that feeling are outlined in the affidavit.
[16] The child further reported to Mr. Perrault that beginning in approximately May 2018 and onward she has developed physical and emotional symptoms of stress when she knows her mother will be picking her up for her access visits with her. These symptoms including headaches, stomach pain, diarrhea, rapid heartbeat, occasional vomiting and trembling. Notably, the child reported to the social worker that her father has encouraged her to see her mother and she denied that he ever discouraged her from doing so.
[17] Following the appointment of counsel Ms. Sun, and as a result of the ongoing difficulties in arranging access time by the child with the applicant, the parties entered into a consent order on October 22, 2019 providing that the child would attend reunification therapy with psychologist Dr. Kristen McLeod.
[18] Todd Perrault ceased meeting with the child while the reunification process was ongoing.
[19] He further states in his affidavit that when he and Ms. Sun met with the child in August 2020, she indicated that she has been happy and at peace while not having to see her mother and reported that she was receiving straight “As”. The child further stated that she was not ready to see the applicant and that when she thinks about the applicant, she gets headaches and stomach pain.
[20] When Mr. Perrault asked the child what she wished him to tell the court he states in his affidavit that she did not wish to see the applicant because she had not protected her and would not listen to her or keep her safe. She further stated that she could not handle the situation anymore and that it made her upset and angry.
[21] Prior to the hearing of this motion, Mr. Perrault met with the child again in person on November 5, 2020 with respect to the applicant’s motion seeking an order for a section 30 assessment. On being advised of the applicant’s motion she indicated among other things, that as long as the applicant remains with her current partner and the fact that the applicant always sides with her partner’s views and does not listen to her, she does not wish to undergo further questioning by another expert.
[22] In addition to attending with Dr. McLeod for reunification therapy, which was unsuccessful, the parties also consented to an order that the child see a therapist to deal with her anxiety condition. Starting in January 2019, the child attended on seven visits with therapist Susanne Muscat. In a letter of June 6, 2019, Ms. Muscat wrote “Isabella reports that her father encourages her to go with her mother for visits and reassures her that she will have a good time, but this is still not helpful in alleviating her anxiety”.
[23] In interviewing the child, Mr. Perrault states in his affidavit that the child confirmed that her expressed feelings and wishes are her own and that she has not been influenced by anyone.
[24] As to the evidence proffered on the interaction between the child, her mother and her partner, there is uncontradicted evidence that the partner while interacting with one of his own daughters caused her a concussion. Further, the evidence is uncontradicted that the applicant or her boyfriend has installed video cameras within the applicant’s home as well as in her vehicle, all of which added to the child’s anxiety in spending time with her mother.
[25] Contrary to the suggestions of the applicant and the submissions of her counsel, I see no evidence within the record that supports the allegation that the respondent is actively alienating the child from her mother.
[26] In response to the applicant’s motion seeking the section 30 assessment, Dr. McLeod filed an affidavit dated November 13, 2020 detailing her clinical involvement with the child.
[27] At paragraph 12 of her affidavit Dr. McLeod stated as follows: “I conclude that any attempt at this time to force a relationship with the child and the mother will only solidify the child’s determination, which in turn will further hurt the mother and the child. I expressed that “the only path to reunification is time, further support for Isabella, and honouring Isabella’s choice and readiness.”
[28] Dr. McLeod further states in her affidavit that she has discussed the requested assessment with the applicant and her reasons for seeking it and states at paragraph 18 of her affidavit: “I am not challenging her view. Rather, it is my opinion that both the process of such assessment and the outcomes of such assessment will not serve the purpose of securing a relationship between the child and her mother. In my opinion, such an assessment will only serve further the child’s anxiety and distrust, and, in turn, cause further damage to the child’s relationship with her mother.”
LEGAL FRAMEWORK & ANALYSIS:
[29] The purpose of a section 30 assessment is, where reasonably necessary, to assist the court in determining the issues that are before the court having regard to a child’s best interests, while taking into account, where available, the expressed views and preferences of the child as well as existing clinical issues regarding the emotional and psychological status of the child within the family unit, where this evidence would not otherwise be available.
[30] Where evidence of the type mentioned is readily available and the court is in a position to reasonably decide the issues relating to a child and their family, without the assistance of an assessment, then such an assessment should not be ordered: Kramer v. Kramer, 2003 CanLII 64318 (ON SC), [2003] O.J. No. 1418 at para 36.
[31] In considering the evidentiary record available, the court must exercise caution in considering whether the requested additional investigation can be justified recognizing the potential negative impact on a child by being further drawn into the court process. Such assessments are not benign and where the advantages do not outweigh the disadvantages of such an assessment a request for such assessment should be denied: Baillie v. Middleton, 2012 ONSC 3728 at para 35.
[32] As was noted in the Divisional Court decision in Linton v. Clarke (1994), 1994 CanLII 8894 (ON SCDC), 10 RFL (4th) 92, there is a specific and narrow purpose for undertaking a section 30 assessment. These assessments are not to be routinely ordered and should be limited to cases where there are clinical issues to be determined and in order that such assessments can provide expert evidence to address emotional and psychological stresses within the family to assist the court in a final determination of custody or access. See also: Glance v. Glance, 2000 CanLII 20393 (ON SC), [2000] O.J. No. 3244 at para 12.
[33] There must be an identifiable benefit to the court of expertise otherwise unavailable that will justify the potentially adverse impact on the parties and the child: Haggerty v. Haggerty, 2007 ONCJ 279 at para 7.
[34] A child’s ability to communicate clearly and display maturity will result in more weight being placed on the pre-teen child’s views and preferences: Benson v. Benson, [2007] O.J. No. 3540 at para 68.
[35] Finally, a section 30 assessment should not be a “fishing expedition” by one party in search of a fact-finding expert’s assessment to support their case: Haggerty.
[36] Dr. McLeod observed in her affidavit at paragraph 17 that she found that the child had a good capacity for formulating her own judgements and is capable of making her own independent decisions at an age-appropriate level. Her position has been firm and consistent. Given the evidence available especially in the form of Dr. McLeod’s observations and those of Mr. Perrault, I am satisfied that the child has the maturity to offer her reasonable views and preferences in the circumstances.
[37] Furthermore, at paragraph 18 Dr. McLeod offered the opinion that compelling the child to attend a further assessment will be counterproductive and could exacerbate her anxiety, causing her emotional harm and physical ailments.
[38] The combined record of CAS materials, the reports of Mr. Perrault, family counselling records, school records, the reports of Dr. McLeod, and the evidence to be offered by Ms. Muscat all provide a very substantial evidentiary record with respect to the expressed views and preferences of the child as well as evidence regarding the stress and anxiety she has been suffering from within the context of her relationship with her parents. As such, I have concluded that the narrow purposes of conducting a section 30 assessment are not engaged on the evidentiary record presented and that any such assessment would be more harmful than helpful having regard to the interests of the child.
[39] On the whole of the evidence available, I cannot conclude that there is evidence of parental alienation on the part of the respondent father, as has been alleged by the applicant.
[40] Also, the clinical issues relating to the child’s mental and physical health have been thoroughly considered in the narrative reports and expert views and opinions expressed by the clinical experts who have met and interviewed the child. Thus, there is sufficient evidence for the court to consider on the issues of custody and access when this matter reaches trial, without the need for a section 30 assessment.
[41] For these reasons the applicant’s motion is dismissed.
[42] The parties are urged to resolve the question of costs, however if they are unable to do so, the respondent shall deliver his submissions on costs of no longer than three pages along with a costs outlined within 20 days followed by similar submissions on behalf of the applicant within 20 days thereafter. No reply submissions are to be filed.
Daley J.
Released: December 11, 2020
COURT FILE NO.: FS-18-299
DATE: 2020 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KIRSTEN ANN ROSS
- and -
ANDREW ALEXANDER D’OLIVEIRA
REASONS FOR DECISION
Daley J.
Released: December 11, 2020