Court File and Parties

COURT FILE NO.: FC-16-2452-1 DATE: 2021/02/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wayne Allan McDonald, Applicant AND Emily Rachael McMullen, Respondent

BEFORE: Justice Engelking

COUNSEL: Rachelle Laforge, for the Applicant Jack Pantalone, for the Respondent

HEARD: November 26, 2020

Endorsement

[1] The Applicant, Mr. McDonald has brought a motion seeking an order for an updated parenting assessment to be completed by Ms. Chantal Bourgeois pursuant to section 30 of the Children’s Law Reform Act, or in the alternative, for a Voice of the Child Report, with costs to be shared by the parties.

[2] The Respondent, Ms. McMullen seeks to have Mr. McDonald’s motion dismissed.

[3] This motion is in the context of a Motion to Change the Final Order of Justice Doyle dated June 28, 2018 brought by Ms. McMullen in December of 2019.

[4] For the reasons that follow, Mr. McDonald’s motion is dismissed.

Background Facts

[5] The parties began cohabiting in September of 2008. Two children were born of the relationship, Sophia McDonald on February 26, 2010 and Vivian McDonald on November 16, 2012. The parents separated on April 10, 2016.

[6] Ms. Bourgeois was retained by the parents in early 2017 and provided a report dated September 29, 2017.

[7] On June 28, 2018 a Final Order was issued on consent of the parties by Justice Doyle which provided for joint custody to the parents and a 2-2-3 parenting schedule. As part of the Final Order, the parents were to use the services of a Parenting Coordinator (“PC”) for certain disputes. Included was the possibility of arbitration by the PC. The parties retained Ms. Marianne Cuhaci as their PC.

[8] The parties had their first dispute over Sophia’s extracurricular activities (dance), which went to arbitration in September of 2018. In an Arbitration Award dated September 7, 2018, the Ms. Cuhaci found in favour of Ms. McMullen. By award dated October 5, 2018, Ms. Cuhaci ordered costs against Mr. McDonald of $395.51, which Mr. McDonald paid.

[9] Mr. McDonald next took issue in January of 2019 with Ms. McMullen moving outside of the children’s school zone (although it did not affect their school, transportation, exchanges or childcare arrangements), which he considered to be contrary to Justice Doyle’s order due to Ms. McMullen not having provided 90 days notice to him. The PC was involved in discussions over this issue, but it was not arbitrated. Rather, Mr. McDonald ultimately consented to the move, though he continued to bring it up as an issue subsequently, including in his affidavits sworn in support of this motion.

[10] In April of 2019, Mr. McDonald made a complaint to the Children’s Aid Society of Ottawa (“CAS”) regarding Ms. McMullen, which necessitated the children being interviewed by a Child Protection Worker (as they had been earlier in their lives around the time of separation). Mr. McDonald then declined to permit the CAS to share their records regarding the investigation with Ms. Cuhaci when requested.

[11] The children were at the time of Justice Doyle’s order receiving counselling from Dr. Goldstein, and this was to be continued. Ms. McMullen at some point became aware that Mr. McDonald was also seeing Dr. Goldstein, which she submits was for counselling and he contends was for parenting guidance. Ms. McMullen was not comfortable with this as her position was that the counselling was required for the children and it needed to be neutral and impartial. She sought to have a change of counsellor for the children and Mr. McDonald opposed this, indicating that he would stop seeking Dr. Goldstein. A third arbitration was held over this issue and Ms. Cuhaci made an award dated September 3, 2019 finding that the children’s counselling needed to be immediately changed to the office of Dr. Adrienne Matheson and that neither parent was to attend individual counselling with Dr. Matheson. Ms. Cuhaci made a further award of costs against Mr. McDonald dated September 21, 2019 for $4,043.64, which Mr. McDonald has not paid.

[12] Also in September of 2019, yet another arbitration was held, again over extracurricular activities for the girls. By Arbitration Award dated September 19, 2019, the PC/Arbitrator once more decided in favour of Ms. McMullen and ordered costs against Mr. McDonald on October 28, 2019 in the sum of $459.06, which remain unpaid.

[13] In December of 2019, Ms. McMullen filed her Motion to Change seeking to change the joint parenting regime contained in Justice Doyle’s order to one of sole custody and primary residence of the children to her.

[14] On November 29, 2019, Mr. McDonald had revoked his consent to allow Dr. Matheson’s office to release information to Ms. Cuhaci, who was the only point of contact between Dr. Matheson and the parents. He also refused to pay his share of Ms. Cuhaci’s updated retainer and as a result of this, Mr. McDonalds’s lack of communication with her and Ms. McMullen commencing court proceedings, Ms. Cuhaci ultimately resigned on January 15, 2020. In response to a request from Ms. McMullen’s counsel, and in accordance with the Agreement for Parenting Coordination signed by the parties on August 16, 2018, Ms. Cuhaci wrote a report dated February 21, 2020 in which she summarized her involvement with the family. Ms. Cuhaci’s report refers to Mr. McDonald’s debt to her of $572.40 being unpaid, however, Mr. McDonald disputes that he owes Ms. Cuhaci any money.

Positions of the Parties

[15] Mr. McDonald is of the view that an updated assessment is necessary before Ms. McMullen’s Motion to Change can be heard. According to him, the children have been voicing issues with Ms. McMullen’s decisions to him and he feels that their voices need to be heard. Mr. McDonald asserts that the children are familiar and comfortable with Ms. Bourgeois due to her having done the assessment in 2017, and that it would not be unduly intrusive to reconnect with her. In the alternative, Mr. McDonald’s position is that, in the very least, the court should order a Voice of Child Report to be completed to ensure that Sophia and Vivian’s views and preferences are independently ascertained.

[16] Ms. McMullen’s position is that there are no clinical issues with the children which require an assessment at this time, and that the real issue anchoring her Motion to Change is the parties proven inability to co-parent, for which she submits there is more than ample evidence from the past four plus years. She submits, additionally, that the children have had enough of speaking to professionals and simply need to get on with their lives. Finally, Ms. McMullen suggests that, in any event, given Mr. McDonald’s behaviour throughout, any views and preferences expressed by girls will likely have been influenced by him and are equally likely not reliable.

[17] From separation to date, the children have seen or been interviewed by the following professionals:

• Chantal Bourgeois (Parenting Capacity Assessor);
• Dr. Judith Goldstein;
• Celine Yegendorf (Dr. Goldstein’s office);
• One or more Child Protection Worker from the CAS of Ottawa;
• Marianne Cuhaci (PC/Arbitrator);
• Dr. Adrienne Matheson; and,
• Melissa van der Maden (Dr. Matheson’s office).

Analysis

[18] Section 30 of the Children’s Law Reform Act provides the court the discretionary power to “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 or willingness of the parties or any of them to satisfy the needs of the child.”

[19] Mr. McDonald relies on Parniak v. Carter in support of the proposition that a clinical issue is not required for a parenting assessment to be ordered by the court. In that case, Justice Kukurin found at paragraph 14 that: “There is no statutory requirement of a clinical issue, explicit or implicit, in section 30 Children’s Law Reform Act.” Nevertheless, Kukurin J. distinguished Parniak from the Ontario Divisional Court decision of Linton v. Clarke, 21 O.R. (3rd) 568, 6 O.A.C. 363, 10 F.L.R. (4th) 92, [1994] O.J. No. 2999, 1994 CarswellOnt 361 (Ont.Div.Ct.), wherein it was decided that orders for assessments were to be limited to cases in which there are clinical issues to be determined, on the basis that Mr. Carter was seeking an order for a request for a section 112 of the Courts of Justice Act investigation rather than a Children’s Law Reform Act section 30 assessment.

[20] Mr. McDonald relies further on the Ontario Court of Appeal decision in Ursic v. Ursic, noting in his Factum that the Court of Appeal “made no reference of the Linton case or to the question of a clinical issue when reviewing an order for an assessment”. However, in Ursic the parties agreed to a social worker delivering an assessment report and recommending a parenting plan for the child in question post-trial and pre-appeal. While the Court of Appeal opined that an assessment may have been as helpful pre-trial as it was pre-appeal, and while it suggested that the trial judge may have erred in not ordering one, it did not ultimately make a such a finding.

[21] Mr. McDonald submits that the Court of Appeal’s silence on the issue in Ursic was interpreted as confirmation that a “clinical issue” is not a pre-requisite for an assessment in Glick v. Cale, 2013 ONSC 893, [2013] O.J. 573. At paragraphs 40 through 44 of her decision, Justice Kiteley concluded that a “clinical issue” is not required before an order for an assessment based on: a) there being no such criterion in section 30 of the Children’s Law Reform Act; b) Linton being fact specific and decided at a time where there was a concern about a “pervasive phenomenon of ordering assessments frequently”; c) Ursic making no mention of the requirement for a clinical issue; and, d) judges being ill-equipped to identify “clinical issues” as opposed to family dysfunction. Justice Kiteley then went on to create a non-exhaustive list of factors she thought helpful for the court to consider when determining the necessity of an order for an assessment.

[22] Ms. McMullen submits that the issue at stake in her Motion to Change is not parenting capacity such that an order for an assessment of the needs of the children or the parents’ abilities to meet them is required. Rather, it is about the parents’ inability to co-parent and make decisions together, for which she suggests there is plenty of evidence available. Her position, moreover, is that the question of joint versus sole custody of the children in one of fact, and does not require an assessment. Ms. McMullen is, additionally, concerned for the children and does not want them exposed to yet more questioning and intervention than they have already endured in the almost five years since separation. Further, she is of the view that the children’s views and preferences cannot be reasonably ascertained, in any event, due to Mr. McDonald’s questioning and coaching of them in the interim.

[23] Ms. McMullen relies on Baillie v. Baillie, 2012 ONSC 3728, wherein Justice Pazaratz found at paragraph 33 that: “A dispute about joint custody versus sole custody is a question of fact. An assessment, although perhaps helpful – is not required [emphasis original] in order to make this determination. (Archer v. Harries-Jones, supra).”

[24] Justice Pazaratz found further at paragraphs 36 and 38 as follows:

[36] An assessor’s expertise will be necessary only if clinical issues exist outside the normal give-and-take of custody and access disputes decided on a daily basis by the court. (Haggerty v. Haggerty 2007 CarswellOnt 4151 (OCJ)).

[38] Section 30 of the CLRA offers a legislative tool that, in a proper case, may assist the court to make a decision. As such, s. 30 should be given a broad interpretation. However, this does not mean that the assessments should be routinely ordered. An assessment should only be ordered where expert input is reasonably necessary to assist the court in determining the issues that are before the court. If, on all the evidence, the court is in a position to reasonably decide the issues, without the assistance of an assessor, then the assessment should not be ordered. (Kramer v. Kramer, 37 R.F.L. (5th) 381 (SCJ)).

[25] Ms. McMullen’s submits that an updated assessment is simply not necessary, given the question to be determined by the court in her Motion to Change. With respect to Mr. McDonald’s alternative request for a Voice of the Child Report, Ms. McMullen relies on B.J.S. v. X.Q.Z (A.K.A. J.Z.), 2019 ONSC 781 and Gajda v. Canepa, 2018 ONSC 5154. In the former, Justice Shore expressed concerns that, although 15 years of age, the child’s views and preferences as a factor to be considered pursuant to section 24(2)(b) of the Children’s Law Reform Act, could not be reasonably ascertained, and as such an order for a Voice of the Child report would “do nothing but encourage further manipulation of these children and delay resolution of the issues.” (See paragraphs 18 and 21). In paragraph 23 of Gajda, Justice Kiteley noted that Voice of the Child reports could be used by a parent to manipulate a child to parrot what a parent wants, though she did not find that to be the case in Gajda and ordered the report.

[26] Mr. McDonald’s affidavits in support of the motion purport to report things the children are saying to him. Ms. McMullen’s explicit concern is either that such things are not being said, or, if they are being said, it is because the children are being manipulated by Mr. McDonald. Ms. McMullen concern stems, in part, from Ms. Cuhaci’s Report dated February 21, 2020. Ms. Cuhaci met with Sophia and Vivian separately on September 11, 2019 and again with Sophia on October 8, 2019. During these meetings, Sophia, whom Ms. Cuhaci described as “quite outspoken”, expressed frustration over her father “asking me questions all the time”, reported that she discovered that her father was recording her telephone calls with her mother, because he wants to get her mother “in trouble” and wants to “look good”, and spoke about her father regularly crying, calling it “fake crying”. Sophia also reported to Ms. Cuhaci being sure that her father would question her about her meetings with her.

[27] Mr. McDonald is dismissive of Ms. Cuhaci’s report, stating at paragraph 55 of his affidavit sworn on September 29, 2020, that she only met Vivian once and Sophia twice, and “the context was not to perform an assessment but rather to obtain the children’s thoughts on a narrow issue”. Narrow or not, Sophia shared some of her thoughts with Ms. Cuhaci which do suggest that Mr. McDonald has engaged in manipulative behaviour.

[28] Reasonably ascertainable or not, a child’s views and preferences is but one factor of the many listed in section 24(2) of the Children’s Law Reform Act to be considered by the court when making a decision in a child’s best interests. What Vivian and Sophia want does not seem to me to be the issue in the Motion to Change. Rather it is whether these parents can continue to manage joint parenting time and joint decision making or not. In my view, a Voice of a Child report is not required for the court to determine that question.

[29] Similarly, a parenting capacity assessment, or more accurately, an update to the existing parenting capacity assessment, is not likely to be of assistance to the court in determining that question. Firstly, many of the questions posed by Justice Kiteley in paragraph 48 of Glick were already addressed as a result of Ms. Bourgeois’ 2017 assessment. Secondly, the children have seen (and continue seeing) many professionals since their parents separated. Subjecting them to more interviews, particularly when the efficacy of them may be limited, does not seem to me to be in their best interests. Additionally, many of these individuals, though perhaps not all, will be available to provide evidence, if necessary, in the Motion to Change proper as to the children’s needs at this time. Indeed, when discussing her interviews with the children, Ms. Cuhaci acknowledged at paragraph 40 of her February 21, 2020 report that “it is recognized that the production the complete record may be ordered by the court”, and again at paragraph 53 that: “In addition to her views and preferences about her activities, Sophia expressed much concern regarding a number of other matters, the details of which are not included in this report but are available, should they be ordered by a Court.” (Emphasis added). Thirdly, there is some evidence to support that the children’s views and preferences may not be independent, and therefore, “reasonably ascertainable”. Finally, as Justice Pazaratz stated in Baillie: “An assessment should only be ordered where expert input is reasonably necessary to assist the court in determining the issues that are before the court.” I do not find this to be such a case on the Motion to Change.

[30] As an aside, although I have found that neither a parenting capacity assessment pursuant to section 30 of the Children’s Law Reform Act nor a Voice of the Child report are necessary prior to the Motion to Change being heard, I can indicate that I may not have been inclined to grant the relief requested by Mr. McDonald in any event, given his outstanding unpaid costs awards of the Arbitrator, Ms. Cuhaci dated September 21 and October 28, 2019. The Court of Appeal of Ontario has recently found in Abu-Saud v. Abu-Saud, 2020 ONCA 824 at paragraph 20 that: “Rule 1(8)(e) of the Family Law Rules, O. Reg. 114/99, explicitly empowers the court to order that a party who has not complied with prior orders is not entitled to any further order from the court unless the court orders otherwise.” It seems to me that Mr. McDonald will put himself in good stead for any future relief he may seek from the court by paying the outstanding costs awards forthwith.

[31] For all of the reasons given above, Mr. McDonald’s motion is dismissed.

Costs

[32] If the parties are unable to agree on liability for the costs of this motion by March 1, 2021, they may make written submissions of no more than three pages, along with copies of their Bills of Costs and Offers to Settle, to me at intervals of 10 days from that date and I will make an order.

Justice Engelking Date: February 8, 2021