COURT FILE NO.: FS-20-16004

DATE: 20210621

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marissa Joseph, Applicant

AND:

Laszlo Molnar, Respondent

BEFORE: Kiteley J.

COUNSEL: Nancy J. Iadeluca, counsel for the Applicant

Joan M. Cushon, counsel for the Respondent

HEARD: in writing

ENDORSEMENT ON MOTION

[1] This is a motion by the Applicant for an order pursuant to s. 105 of the Courts of Justice Act that the Respondent undergo a psychiatric assessment/examination to be conducted by Dr. Hy Bloom and related orders, as well as production of the file of the Respondent’s previous counsel. This is a motion by the Respondent for an order for production of the file of the parties’ marriage counsellor.

Background

[2] The parties were married in 2012. The child, B. was born June 10, 2015 and is now 6 years old. The date of separation is in dispute. According to the Applicant mother it is September 30, 2017. According to the Respondent father it is November 1, 2019. In either case, this child has spent much of his life in the midst of conflict between his parents.

[3] In 2001 the Respondent was diagnosed with Bipolar Affective Disorder 1. He has been hospitalized on three occasions, the last in late 2019. He has been on long term disability since January 2018.

[4] The Application for divorce was filed on March 5, 2020 and the Answer and Claim was filed January 28, 2021.

[5] On March 12, 2020, the Applicant brought an urgent motion seeking an order for specified supervised parenting time for the Respondent. In an endorsement dated March 12, 2020, I scheduled a long motion for April 30, 2020 on terms, namely that the Respondent have interim access on Saturdays (from 12 p.m. to 4 p.m.) and Mondays, Wednesday, and Fridays (from 3 p.m. to 6 p.m.) to be supervised by his mother or the nanny. The Respondent was ordered not to enter the matrimonial home at pick up or drop off. The parents were ordered not to disparage the other to the child or others. I directed the parties to communicate using Our Family Wizard. I scheduled a telephone case conference with counsel on April 17, 2020.

[6] On March 15, 2020, the Chief Justice of the Superior Court issued a notice indicating that the regular operations of the Superior Court were suspended as of March 17, 2020.

[7] In an endorsement dated April 17, 2020 after the telephone case conference with counsel, I continued the March 12th order with modifications as to the supervision and restricting the frequency of contact between the parties.

[8] The long motion scheduled for April 30, 2020 was postponed.

[9] In an endorsement dated June 8, 2020, Shore J., as triage judge, directed that there be a case conference on July 13 and the long motion would be heard on July 21.

[10] The case conference was held on July 13. In paragraph 10 of the endorsement dated July 14, 2020, I noted that the focus of attention was on ensuring that the parties were ready for the long motion to be heard the following week. There was much to be done. In paragraphs 18 to 21 I gave directions with respect to the motion.

[11] On July 21, 2020, Moore J. adjourned the motion to the Return to Operations Court on Wednesday September 2, 2020.

Motions by Applicant and Respondent in August, 2020

[12] On August 20, 2020, Sossin J. heard the long motions relating to parenting rights, an assessment under s. 30 of the Children’s Law Reform Act, a restraining order and related relief.

[13] In paragraphs 21 to 43 of his endorsement dated September 1, 2020 [2020 ONSC 5237] Sossin J. considered the evidence and the legal principles, including the decision in Glick v. Cale [2013 ONSC 893]. At paragraph 40, he concluded that a s.30 assessment was not in B’s best interests. At paragraph 41, he held that it was in the interests of both parties, and in B’s best interests, to move this matter to trial as quickly as possible so that the parties could acquire some degree of certainty in their affairs and move on with their lives. At paragraph 42, he held that in the interim, therapeutic intervention to address B’s behavioural issues should be arranged, and he urged the parents to collaborate on facilitating that support for the child.

[14] In that decision Sossin J. established three stages of parenting time. Stage 1 was in effect from September 9, 2020 to October 4, 2020. During that stage the Respondent’s parenting time with B. was on Wednesdays and Fridays from 3:00 to 6:00 p.m. and on Saturdays at noon to Sundays at noon.

[15] Stage 2 started October 5 and provided that the Respondent’s parenting time would increase to the following times: Wednesday 3:00 pm to Friday at 3:00 p.m. and Saturday at noon to Sunday at noon. No supervision was required.

[16] Stage 2 was to be in place for two months. As indicated in paragraph 85 of his decision, Sossin J. held that commencing the week of December 7, 2020, a third stage would commence. In paragraph 87 of his decision, Sossin J. directed the parties to schedule a case conference prior to the conclusion of Stage 2 at which time there would be a discussion about a transition to “roughly equal parenting time”.

[17] Sossin J. dismissed the Applicant’s motion for a s. 46 restraining order. In paragraphs 101 to 106, Sossin J. referred to the April 17 order requiring the parties to use Our Family Wizard. He noted the “tensions arising in the aftermath of the COVID-19 pandemic”. In paragraph 104 he specified that the no-contact order extends to not disparaging each other or engaging in surveillance of any kind of each other. In paragraph 106, he held that “compliance with this no-contact order can also be assessed at the case conference, to be scheduled for the first week of December, 2020.”

[18] In an endorsement dated October 8, 2020, Sossin J. made an order requiring the Applicant to pay costs to the Respondent in the amount of $20,000 within 30 days.

[19] In early November, the Applicant changed lawyers. Counsel for the Respondent attempted to arrange the case conference in early December but was not successful. The case conference took place before me on February 5, 2021.

[20] In the endorsement dated February 8, 2021 I ordered the Stage 2 schedule to continue until further order. I ordered the parties to submit in writing the draft order that each party proposed and I indicated that I would make a decision with respect to Stage 3 after review of those draft orders and on the basis of the case conference briefs.

[21] In that endorsement, I also noted that the Applicant intended to bring a motion pursuant to s.105 of the Courts of Justice Act that would be done in writing.

[22] I directed the lawyers to arrange for a case conference in April on the non-parenting issues in the case.

[23] In an endorsement dated March 15, 2021, I explained the reasons for accepting the draft order proposed by the Applicant for Stage 3. In paragraph 14, I noted that it is important that the incremental increase in parenting time is tied to communication issues and that compliance with the no-contact order would also be assessed at the case conference. In paragraph 15, I referred to the extensive examples of the Respondent not only not complying with the no contact directions of Sossin J. but consistently disregarding them. In his case conference brief, the Respondent acknowledged that from September to late December, his “frustration with the Applicant was apparent during a few FW posts, all of which the Applicant has cut and taken out of context in her brief”. The following is an excerpt from paragraph 15 of that endorsement:

In her brief, the Applicant has also referred to several such communications in January and it is apparent that his “frustration” did not end in December. The content of many of his electronic communications is unacceptable. The incremental increase in parenting time is tied to the elimination of such inappropriate and unacceptable communications. In order to facilitate continued expansion of B’s parenting time with his father, the communications between the parents must be normalized.

[24] In paragraph 6 of the formal order I directed that “on or after June 30, 2021, the parties will review Stage 3 of the parenting schedule and the extent to which the parties [are] in compliance with the Communication Protocol” contained in the formal order.

Notice of Motion by Applicant

[25] This motion was originally returnable at the case conference scheduled for April 23. In the endorsement dated April 23, 2021 I directed counsel to complete the record and facta in order that the matter would be dealt with in writing. On June 2, 2021 counsel filed the joint confirmation form that listed all of the documents on which each relied.

[26] The Applicant has asked for an order appointing Dr. Hy Bloom to do a defence medical and ancillary orders. She has also asked that the Respondent provide the contents of the file of his lawyer who acted for him in the negotiations and execution of the Separation Agreement/Marriage Contract dated April 23, 2018.

[27] The Applicant asserts that the Respondent’s mental health is relevant to issues of custody and access, income, child support, spousal support, and in respect of his claims to set aside the Separation Agreement dated April 23, 2018. In paragraph 4(c) of her factum, the Applicant listed the grounds on which the Respondent sought to set aside the Separation Agreement/Marriage Contract including that the provisions were improvident, that the Applicant preyed on the Respondent’s vulnerable mental and emotional state, that the Respondent signed under duress, that the Respondent’s fragile emotional state was caused by the Applicant, that the Respondent was in an extremely vulnerable state during the negotiations, and that the Respondent did not understand the nature and consequences of the agreement, all of which she submits indicate that the Respondent has put his state of mind in issue.

Position of the Respondent

[28] In paragraph 4 of his factum, the Respondent took the position that those are primarily issues of fact, not of mental health. He asserts that testing of each party’s evidence through cross-examination/questioning and exchanging disclosure including the notes of the marriage counsellor, and other financial disclosure will narrow the issues and best reflects the most reasonable, proportionate and time/cost-effective initial step prior to determining if a defence medical is required and justified. Through cross-examination/questioning, the Applicant’s allegations of family violence, on which she bases the need for her defence medical, can be challenged. He emphasizes that all of the evidence on which she relies is not only not corroborated, but is in conflict with evidence he has provided, such as a report from his psychiatrist.

[29] In paragraph 12, the Respondent summarized the reasons why the Applicant’s motion should be dismissed.

[30] In submissions, the Respondent also challenged the admissibility of the Applicant’s reply affidavit sworn May 14, 2021.

Admissibility of affidavit of Applicant sworn May 14, 2021

[31] In the endorsement dated April 23, 2021, I set a schedule for delivery of affidavits. I did not include a reply affidavit by the Applicant.

[32] In his responding affidavit sworn May 7, 2021, the Respondent took issue with the suitability of the proposed expert. I agree with the Respondent that if the Applicant wanted to provide evidence as to the expert’s credentials and suitability for this particular case, she should have done it in her initial affidavit. Paragraphs 6, 7 and 14 of her reply affidavit sworn May 14, 2021 are not admissible.

[33] Paragraphs 2 to 5, 8 to 9, 11 to 13 and 15 to 16 are largely repetitive and not appropriate, particularly when a reply affidavit was not contemplated. In paragraph 10 the Applicant responded on the issue of the marriage counsellor, which is appropriate.

Analysis: order pursuant to s. 105 of the Courts of Justice Act

[34] Section 105 (2) of the Courts of Justice Act provides that “where the physical or mental condition of a party to a proceeding is in question, the court may order the party to undergo a physical or mental examination by one or more health practitioners. Pursuant to s. 105(3), where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation. At paragraph 23 of her factum the Applicant submits that the “defence medical” provided by s. 118 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure forms an integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue. In my view, s. 118 of the Courts of Justice Act has no application in this case.

[35] I will address the parenting aspect of the motion below.

[36] In this analysis, I refer to the financial issues including the Applicant’s claim for child support, the Respondent’s claim for spousal support, the Respondent’s claim to set aside the Separation Agreement/Marriage Contract, and the Respondent’s claim for an equalization of net family property. In respect of all of those issues, the motion for a “defence medical” is dismissed for these reasons.

[37] First, while I agree that the Respondent has put his state of mind in issue in the context of the negotiation and execution of the agreement, “state of mind” is not equivalent to the “mental condition” of a party as contemplated by s. 105.

[38] Second, to the extent that the Respondent alleges improvidence, duress, fragile emotional state, extremely vulnerable state, and lack of understanding of the nature and consequences of the agreement, the onus of proof is on the Respondent. He must introduce evidence on which the trial judge can make such findings. At this point, he has not served a report of a “litigation expert” within the meaning of rule 20.2 of the Family Law Rules. If he does serve such a report bearing on any of those allegations, then the request for an examination pursuant to s. 105 may become relevant.

[39] Third, I do not accept the Applicant’s submission that she requires a s. 105 assessment to counteract the evidence of the Respondent’s psychiatrist, He has been his treating physician for years and arguably is a “participant expert” within the meaning of rule 20.2 of the Family Law Rules. An order pursuant to s. 105 would be in the context of the Respondent’s current mental health status and would be of little, if any, use in responding to the historic evidence. In order for the trial judge to receive the evidence, the psychiatrist will be required to attend as a witness. The Applicant will have ample opportunity to cross-examine him. A “defence medical” is not necessary.

[40] Fourth, the Respondent has been on long-term disability for over three years. He is subject to ongoing reviews by the insurer to determine whether he continues to qualify. The Respondent has agreed to provide disclosure of the contents of the insurer’s file that will include any examinations of the Respondent’s mental or physical condition. The Respondent must lead evidence at the trial as to the nature of his disability. A representative of the insurer must attend as a witness. The Applicant will have ample opportunity to cross-examine the representative. The fact that the Respondent continues to be eligible for long-term disability does not preclude the Applicant from making the submission that, for purposes of his claim for spousal support, the court ought to impute income to him in addition to his disability income. A “defence medical” is not necessary.

[41] Fifth, the allegations that the agreement was improvident, that he signed under duress, that he was in a fragile emotional state and was extremely vulnerable, and that he did not understand the nature and consequences of the agreement, will be impacted by the evidence of the lawyer who acted for him and who signed a certificate of independent legal advice in which it is stated that the Respondent understood the nature and effect of the agreement and he confirmed to the solicitor that he was entering into the agreement of his own volition. The Respondent must lead evidence as to the progress of the negotiations, his communications with his lawyer, the advice his lawyer gave him, and his circumstances at the time he signed the agreement. The Applicant will have ample opportunity to cross-examine the lawyer. A “defence medical” is not necessary.

[42] The Applicant has not met the onus of proving that the psychiatric assessment is necessary, relevant to one or more of the issues, or that such expert evidence would provide information which is necessary for her to defend against the relief sought in the Respondent’s Claim, and for the Court to reach a determination on one or more of the issues. Furthermore, I agree that the evidence provided by the Applicant in her initial affidavit is not sufficient to find that Dr. Bloom is the appropriate and qualified expert to conduct such a psychiatric assessment, particularly to provide a parenting capacity assessment. The evidence with respect to Dr. Bloom’s expertise and its relevance to the case in the reply affidavit is not admissible. In order for the court to have concluded that Dr. Bloom was qualified to perform the assessment, the evidence would have been required from Dr. Bloom.

[43] It may be that, after all of the disclosure is provided and questioning has been conducted, that the Applicant may bring a similar motion. As indicated above, if the Respondent serves a report of any “litigation expert” that may trigger a renewal of this motion. At this point, the record does not support the request and the motion is dismissed.

[44] As indicated above, the Respondent has agreed to produce the insurer’s file and had already made the request. Although production of the file was not enumerated in the draft order, I will make the order below.

Analysis: s. 30 assessment or s. 112 investigation

[45] As indicated in paragraph 35 above, I turn to the parenting aspect of the motion. I have noted the lack of evidence that Dr. Bloom has the expertise to provide a parenting capacity assessment. Having dismissed the motion for an order pursuant to s. 105 of the Courts of Justice Act, I turn to a consideration of the alternatives to address the parenting issues, namely an assessment pursuant to s. 30 of the Children’s Law Reform Act or an investigation pursuant to s. 112 of the Courts of Justice Act.

[46] The Application was issued on March 5, 2020 and was then subject to the provisions of the Divorce Act 1985. Effective March 1, 2021, the provisions of the Divorce Act were amended and, as a result, the terms “custody” and “access” are no longer in use. Instead, the Court is directed to make orders with respect to “parenting decision-making” and “parenting schedule”. In paragraph 18 of the endorsement dated February 8, 2021, I encouraged the lawyers to review that framework with their clients when negotiating or advocating with respect to parenting issues. For purposes of this motion, I assume that the amendments will apply to the case.

[47] Section 30 of the Children’s Law Reform Act was amended to be consistent with the amendments to the Divorce Act and now provides as follows:

(1) The court before which an application is brought for a parenting order or contact order with respect 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.

(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child with or without a request by a party to the application.

(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person.

(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. . . .

(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. . . .

(9) The report mentioned in subsection (7) is admissible in evidence in the application.

(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. . . .

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). Emphasis added

[48] In paragraphs 21-30 of his decision, Sossin J. explained the reasons for dismissing the motion for a s. 30 assessment. On the basis of the record before him, he was not persuaded that an assessment was necessary or in the best interests of the child. Indeed, it was his view that it was in the interests of both parties and in the child’s best interests to move the matter to trial as quickly as possible.

[49] The Respondent argues that the September 1st order is res judicata. Black’s Law Dictionary defines that term as follows:

The term designates a point or question or subject-matter which was in controversy or dispute and has been authoritatively and finally settled by the decision of a court; that issuable fact once legally determined is conclusive as between parties in the same action or subsequent proceeding.

[50] It is not that clear that dismissal of a motion for a s. 30 assessment is a “point or question or subject-matter” within the meaning of res judicata. Issues with respect to parenting are not “finally settled” even with a final order since a parent has the option of bringing a Motion to Change Final Order alleging a material change in circumstances. If a judge made an order refusing a motion for a s.30 assessment before the “final order” is made in the case, that would have no impact, and would not be considered res judicata, if one of the parties brought a motion for a s.30 assessment in the context of a Motion to Change Final Order. I do not agree with the Respondent’s submission that the order made by Sossin J. dated September 1, 2020 precludes this court from making such an order now. I am not persuaded that the order is res judicata.

[51] Based on the record before me, for the reasons that follow, it is in the child’s best interests that a s. 30 assessment should be undertaken

[52] First, the amendments to the Divorce Act have provided more specific guidance to judges in the list of factors relevant to the best interest of the child and include s. 16(3)(h) the ability and willingness of each parent in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each parent in respect of whom the order would apply to communicate and cooperate, in particular with the other parent, on matters affecting the child; and (j) any family violence and its impact on the ability and willingness of a parent who engaged in the family violence to care for and meet the needs of the child and the appropriateness of making an order that would require a parent in respect of whom the order would apply to cooperate on issues affecting the child. The significance of family violence is highlighted in s. 16(4). Given this framework, in the circumstances of this case, it is incumbent on the court to reconsider whether a s. 30 assessment is in the best interests of the child.

[53] As indicated above, notwithstanding the no-contact orders and particularly the modification by Sossin J. the Respondent has failed to comply. Section 16(3)(i) now specifically directs the court at trial to consider the ability and willingness of each parent to communicate with the other parent on matters affecting the child. Since the order of Sossin J., the Respondent’s persistent failure to comply with the no-contact order was an obstacle to moving to the Stage 3 schedule that he requested. It may remain an obstacle at trial.

[54] In respect of s. 16(3)(j) and s. 16(4), whether it is uncorroborated allegations of violence, as the Respondent asserts, or substantive allegations affecting the ability of the Respondent to respond to the needs of the child, the court has to have the information. If the Respondent is found to be correct in his insistence that, while he has Bipolar Disorder, he is capable of responding to the needs of the child and correct that the Applicant is fabricating or fantasizing about the mental health challenges that impact the Respondent’s ability and willingness to satisfy the needs of the child, the Court needs to know that because it may impact the Applicant’s or the Respondent’s ability to respond to the needs of the child.

[55] Second, pursuant to s. 16(6) the court is required to include in a parenting order any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order. Based on my participation in case conferences and a motion in writing with respect to Stage 3 and in this written motion, I infer that these parents are incapable of developing a parenting plan. It will likely be helpful to the trial judge in responding to the requirements of s. 16(6) to have input from a professional.

[56] Third, s. 30(2) contemplates an order without a request by a party. Pursuant to rule 2 of the Family Law Rules, the court is required to apply the primary objective which is to deal with cases justly. In my view, given the amendments to the Divorce Act and the failure to comply with the no-contact order, it is consistent with the primary objective for the court to apply s. 30(2) and make an order without requiring the Applicant to formally make a motion for that order.

[57] Having reviewed again the list of non-exhaustive factors in paragraph 48 of Glick v. Cale in the context of the amendments to the Divorce Act, I am satisfied that (b)(e) and (i) are particularly relevant in my conclusion that an order is in the best interests of the child. It will lead to delay, which was a key factor according to Sossin J. The reality is that this case is not close to trial because the non-parenting issues have not been developed but will occupy significant time at a trial, because there has been no questioning, and because disclosure is outstanding. I do not consider the issue of delay to achieve the prominence that it did when the original motion for a s.30 assessment was heard.

[58] As required by s. 30(3), the parties will be given an opportunity to agree on an assessor, failing which I will select one of the assessor’s suggested by each party. As required by s. 30(4), the court shall not appoint a person unless the person has consented to make the assessment and to report within the period of time specified by the court. The court is cognizant that imposing early deadlines may be unproductive given the COVID-19 environment in which we continue to operate and given that an early deadline may limit the possible assessors.

[59] As indicated above, an alternative to a s. 30 assessment is an order pursuant to section 112 of the Courts of Justice Act which provides as follows:

(1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning decision-making responsibility, parenting time or contact with respect to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning decision-making responsibility, parenting time or contact with respect to the child and the child’s support and education.

(2) The Children’s Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person.

(3) An affidavit of the person making the an investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.

(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness.

[60] Having found that it is in the best interests of the child to order an assessment, I need not give further consideration to this alternative. I mention it because, as Sossin J. noted in paragraph 26 of the September 1st endorsement, the Respondent had opposed the order for an assessment and submitted that if an outside perspective was necessary, it should be using s. 112. The court cannot order the Children’s Lawyer to conduct an investigation. The court simply makes a request. If the Children’s Lawyer declined the request, that would result in further delay because it would likely trigger a fresh motion by the Applicant for a s. 30 order.

Analysis: production of the file of the Respondent’s previous lawyer

[61] On March 17, 2021 the Applicant’s lawyer served a Request for Information on the Respondent’s lawyer in which she sought an order requiring the Respondent to produce the entire contents of the Lo Greco Stilman client file including a copy of all communications to and from the solicitor and the Respondent and/or third parties, emails, notes of meeting, voicemail messages and accounts from the start of the retainer to and following the execution of the Amending Agreement dated April 1, 2019.

[62] In paragraphs 44 and 45 of his affidavit sworn May 7, 2021 the Respondent expanded on his assertions that he had not received financial disclosure, he had been subject to undue influence, he was under duress and the agreement is unconscionable. In that evidence he makes many references to his then lawyer. It is clear that the Respondent has waived solicitor and client privilege and the entirety of the file must be produced. Indeed, the Respondent did not take any position in his factum on this issue from which I infer that he acquiesced in the order requested. I assume that he made the request many weeks ago and for that reason, I will order production in the immediate future.

[63] That aspect of the Applicant’s motion is granted.

Analysis: production of the file of the marriage counsellor

[64] In paragraphs 38 to 42 of his factum, the Respondent takes the position that the privilege afforded to marriage counselling is no greater than that of solicitor client privilege, that the Applicant has clearly put the issue of whether or not the parties reconciled between 2018 and 2019 at issue, and that the marriage counsellor had an ongoing relationship with the parties between 2016 and 2019. He argued that the marriage counsellor may have important information on the issue of whether the parties contemplated reconciliation in 2018 and 2019 or whether in fact they reconciled and continued marriage counselling.

[65] I agree with the submissions of the Applicant in paragraphs 33 to 36 of her factum. The parties were involved in marital counselling on and off between 2016 and 2019. Section 10(5) of the Divorce Act renders inadmissible evidence of anything said or communications made in the course of an endeavour to assist the parties to a marriage with a view to their possible reconciliation. The public interest in maintaining the confidentiality of marriage counselling takes precedence over any immediate relevance of any issue in the case.

[66] That aspect of the Respondent’s motion is dismissed.

Costs

[67] In the ordinary course, the court would ask for written submissions as to costs that would include a bill of costs, written submissions and offers to settle. In this case, I decline to do so.

[68] These circumstances are unique in that the Applicant was not “successful” in obtaining the s. 105 order. While the Respondent was “successful” in resisting the motion for a s. 105 order, the court nonetheless made an order, without the request of either parent, that is in the best interests of the child. The s. 30 order is partly driven and informed by the recent amendments to the Divorce Act. This was the most important aspect of the motion. Neither party was “successful”.

[69] The Applicant was successful in obtaining an order for disclosure of the Respondent’s lawyer’s file. The Applicant was also successful in resisting the Respondent’s motion for an order for production of the contents of the marriage counsellor’s file. The Respondent was not successful in either of those. However, the evidence and facta on these aspects of the motions was secondary to the key issue of s. 105.

[70] Pursuant to s. 24(1), there is no “successful” party on the key issue and therefore the presumption as to entitlement to costs does not operate. In these circumstances, neither party should be required to pay or recover costs.

Next Steps

[71] When an order for a s.30 assessment is made, typically the parties are expected not to continue to pursue the adversarial steps in the case. In some cases, the assessor will refuse to conduct an assessment unless the parties agree to suspend other proceedings so that the conflict that arises by the filing of accusatory and or contradictory affidavits can be avoided.

[72] In paragraph 6 of the order dated March 15, 2021, I indicated that “on or after June 30, 2021, the parties will review Stage 3 of the parenting schedule and the extent to which the parties [are] in compliance with the Communication Protocol”. I did not authorize either parent to bring a motion. In order to ensure that the parties will focus on the assessment, I will make an order that neither is permitted to bring a motion for any relief without leave from a judge.

[73] I do expect the parties to comply with their ongoing disclosure obligations and comply with this order as to disclosure of the lawyer’s file. I encourage the lawyers to assist their clients in continuing the disclosure process. I am assuming that as soon as the assessment report is available, the parties will be prepared to attend a settlement conference on parenting issues and the non-parenting issues.

[74] It is agreed that questioning will be conducted. The Family Law Rules require that the parties obtain an order for questioning. Since I will not permit the parties to bring motions, then, in effect, questioning cannot occur. If the parties secure the agreement of the assessor that conducting questioning will not impede the assessor’s work, and if the parties agree to the duration of questioning and the subject matters, then the parties may submit a 14B motion on consent for leave to bring that motion and for an order for questioning.

ORDER TO GO AS FOLLOWS:

[75] The motion by the Applicant for an order pursuant to s. 105 of the Courts of Justice Act is dismissed.

[76] An assessor is appointed pursuant to s. 30(2) of the Children’s Law Reform Act, without a request by a party, in respect of decision-making responsibility or parenting time with the child, B., (full name and birth date to be included in the formal order), to assess and report to the court on the needs of the child and the ability and willingness of the parties or either of them to satisfy the needs of the child.

[77] The court shall appoint the assessor who shall be identified in the following process:

(a) by June 28, 2021, the parties shall make reasonable efforts to agree on the assessor;

(b) if the parties agree on the identity of the assessor, then by July 7, 2021, counsel shall send to my attention through the Acting Trial Co-ordinator, in a joint confirmation form attaching the resume of the proposed assessor, the consent of the assessor, the assessor’s suggested time frame, the terms of payment for the assessor’s services and a draft approved order;

(c) if the parties do not agree on the identity of the assessor, or with respect to any of the terms mentioned above, then by July 7, 2021 counsel shall send to my attention through the Acting Trial Co-ordinator, a joint confirmation form attaching the resume of the assessor that each proposes, the consent of the assessor, the assessor’s suggested time frame, the proposed terms of payment for the assessor’s services and a draft order;

(d) the parties are required to meet the deadlines in paragraph 77(b) or (c). Neither party may ask for an extension.

[78] By July 15, 2021, the Respondent shall produce the contents of the disability insurer’s file, including the regular opinions provided by the Respondent’s psychiatrist, the review and further opinions of the psychiatrists retained by the insurer, and, as soon as available, the further psychiatric assessment that had been arranged at the time of the filing of the factum of the Respondent.

[79] By July 15, 2021, the Respondent shall produce the contents of the Lo Greco Stilman LLP client file for the Respondent including a copy of all communications to and from the solicitor and the Respondent and/or third parties, emails, notes of meetings, voicemail messages and accounts from start of the retainer to and following the execution of the Amending Agreement dated April 1, 2019.

[80] Except for the circumstances referred to in paragraph 74 above with respect to questioning, neither party may bring any motion for any relief without first obtaining leave from a judge.

[81] The motion by the Respondent for production of the marriage counsellor’s file is dismissed.

[82] Neither the Applicant nor the Respondent shall pay or recover costs of these motions.

[83] By July 7, 2021, counsel may forward an approved draft order consistent with paragraphs 75 to 82 to my attention through the Acting Trial Co-ordinator.

Kiteley J.

Date: June 21, 2021