COURT FILE NO.: FC-16-2206
DATE: 2021/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFFREY HUTCHINSON
Applicant
– and –
JENNIFER PATRICIA PEEVER
Respondent
Ms. M. Ile-Draga, for the Applicant
Ms. A. Campbell, for the Respondent
HEARD: January 15, 2021
decision on motions
Kane j.
[1] The applicant father in his January 13, 2021 amended motion seeks:
a. an order pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, CHAPTER C.12 (the “CLRA”) directing that an immediate parenting assessment be conducted by Ms. Sandra Kapasky, with recommendations regarding custody and parenting;
b. an order granting him temporary exclusive possession of the matrimonial home until such time as equalization of property between the parties has been determined by the court; and
c. an order on an urgent basis for the children to be placed in his care until such time as the mother provides strict evidence of compliance with Covid-19 protocols during the current lockdown policy.
[2] Counsel for the father in argument did not pursue the third ground of his motion that the children be immediately placed in his care due to his Covid-19 concerns as to the mother’s care.
[3] The respondent mother by motion seeks an order settling the terms of and authorizing her to proceed with the sale of the parties’ matrimonial home presently occupied by the father.
[4] In her November 26, 2020 case management endorsement, Justice Engelking directed these motions proceed to determine the issues as to sale of the matrimonial home and whether a s. 30 CLRA assessment should be ordered.
Background
[5] The parties are the parents of a twelve-year-old son and an eight-year-old son.
[6] The parties:
a. jointly own the matrimonial house located at 14 Peter Street Maxville, ON;
b. separated in February 2016;
c. resided in the matrimonial home during alternating weeks with the children pursuant to the April 29, 2016 interim order of Leroy J. until the summer of 2018 by which time the mother had moved to Ottawa and the father continued to reside in the matrimonial home; and
d. participated in a two-week trial in September and October 2018, in which Engleking J. issued a detailed judgment and reasons for judgment. (jointly, the “Trial Decision”) on October 18, 2018.
[7] By way of summary, the Trial Decision granted the mother:
a. sole custody of the children;
b. primary residence of the children during the school year; and
c. final decision authority regarding the children after consultation with the father.
[8] The children pursuant to the Trial Decision:
a. are to be in their father’s care for three consecutive weekends out of four weeks during their school year;
b. otherwise reside with the mother during the school year and;
c. reside during alternating weeks with each parent during their summer holiday period.
Mother’s Motion re Matrimonial Home
[9] The mother relied upon her Notice of Motion dated September 1, 2020 in which she sought various heads of relief including as to the matrimonial home.
[10] As to the matrimonial home, the mother in that motion seeks the following orders:
a. that the father vacate the matrimonial home within 21 days;
b. that the mother shall have exclusive possession thereof in order to prepare that property for sale;
c. that such property be listed for sale immediately with a sales agent selected by the mother;
d. that the mother will have authority to make all decisions regarding the sale of such property, without the consent of the father;
e. that the costs to prepare the home for sale, as recommended by the sales agent, shall be the equal responsibility of the parties;
f. that the above matters may be brought back to court on short notice if required;
g. that the father is to be responsible for all carrying costs of the matrimonial property until its sale;
h. that the matrimonial property be listed for sale immediately and that it be sold to the first purchaser making a reasonable offer, as determined by the mother on recommendation of the vendors’ real estate agent; and
i. that all proceeds of sale of the matrimonial home, after payment of costs of its disposition, be held in trust with the vendors’ real estate agency pending further order of the court.
[11] The father in his amended January 13, 2021 motion seeks an order granting him temporary exclusive possession of the matrimonial home until such time as equalization of property as between the parties has been decided and that matrimonial home not be sold in the interim.
[12] The father by affidavit states it was unconscionable that the equalization issue was not determined in the Trial Decision and regrets not having appealed the Trial Decision.
[13] The Trail Decision does not include equalization amongst the issues to be determined in that trial.
[14] As to exclusive interim possession, the father points to the court’s authority in sections 24(1)(b) and 24(2) of the Family Law Act, R.S.O. 1990, c.F.3, to make an interim order of exclusive possession of the matrimonial home, based on the criteria listed in sections 24(3) and (4), which include consideration of the best interests of the children including any possible disruptive effects of a move on the children, the financial position of each party and the availability of other suitable and affordable accommodation.
[15] The father submits that:
a. his income due to Covid-19 is dramatically reduced resulting in significant financial hardship currently;
b. he currently has no alternate accommodation for himself and his sons;
c. based on the prior attempt to sell the property, it is unlikely the mother will receive any material financial benefit if the property is now sold; and
d. the sale of such property would not be in the interest of the children who reside there with him during three consecutive weekends during the school year and during alternate weeks during the children’s summer vacation.
[16] It is not uncommon for children to move to a new home, in the same of other municipality, pursuant to the need or wish of their parent(s) to do so. There is nothing inherently harmful to a child in doing so with their parent.
[17] The mother lives in rental accommodation in Ottawa where the children reside with her other than three consecutive weekends during the school year and alternate weeks during their summer vacation.
[18] The mother seeks to access her share of the equity in the matrimonial home, which has now been delayed since late 2018.
[19] The mother’s income from her cleaning business has also been significantly reduced during the Covid-19 pandemic.
[20] The Trial Decision ordered that the matrimonial home be listed for sale and provided detailed instructions as to the sale process including:
a. the manner of selecting and engaging a real estate agent to represent the parties as vendors;
b. selecting an asking price;
c. the right of the parties to bring any issue as to the sale of such property before the court on short notice.
[21] The parties engaged a real estate agency which listed the property for sale between December 2018 and June 2019, with an asking price of $185,000.
[22] The photographic evidence indicates that the father during that listing period maintained the home in a state of disarray, unclean and not presentable to potential buyers. That may explain why there were no showings during that six-month listing.
[23] The father attempts to justify his then state of disarray inside the home in faulting the mother for her removal of storage furniture such as dressers from the home. Temporary rental of commercial locker space was an option. There is no evidence that Mr. and Mrs. Johnson, the paternal grandmother and her husband who live in a home in Maxville very close to the matrimonial home, were unable to provide temporary storage of the many bags of articles shown in the photographs.
[24] The parties have been unable to agree to a consideration amount for the father’s purchase of the mother’s interest in the matrimonial home.
[25] The father, during this initial listing and since then, has opposed the sale of the matrimonial home to a third party.
[26] The October 18, 2018 Trial Decision that the matrimonial home be listed and sold is a final order. This January 2021 motion by the father for an order of exclusive possession until the determination in the future of equalization entitlement, effectively is an improper attempt to appeal or stay the 2018 Trial Decision determination that such property be listed and sold.
[27] Section 24 of the Family Law Act is not a mechanism or basis to set aside the Trial Decision final order that this property be listed for sale and sold.
[28] The order of exclusive possession granted in Mahajeri v. Stroedel, 2020 ONSC 6554 relied upon by the father, was an interim order until trial. That decision is clearly inapplicable as to this motion to enforce the 2018 Trial Decision that the property be sold.
[29] The order of exclusive possession until the children completed high school in Ruscinski v. Ruscinski, 2006 ONSC 9982, was determined at trial. This decision is not applicable.
[30] Based on the evidence before the court, Mr. Hutchinson continues to oppose the sale of the property as determined in the Trial Decision and will not cooperate regarding a sale of the property. Mr. Hutchinson will continue to defy such court order as long as he is entitled to remain in the property.
[31] The mother’s motion is granted for the above reasons. The father’s cross-motion for interim exclusive possession is denied.
[32] The father, despite his delay since October 2018, requires a reasonable period of time to locate and move to a new residence.
[33] This court makes the following orders to implement the 2018 Trail Decision that the matrimonial home be listed for sale and sold forthwith:
a. the father is ordered to clean, vacate and remove all contents from the matrimonial home, no later than 5 p.m. on September 15, 2021;
b. the father is to notify the mother immediately upon his moving out of and removal of all contents from the property. The mother shall thereupon have exclusive possession of the matrimonial home in order to prepare, list and conduct its sale;
c. the mother shall consult and obtain the recommended listing price for the sale of the matrimonial home from three real estate agencies. She shall select the average of those recommended listing prices as the price which the property is to be listed for sale;
d. the property shall thereupon be immediately listed for sale with the sales agent selected by the mother at the above average recommended listing price;
e. the mother will have authority to make all decisions regarding the sale of the property, based on the recommendation of the vendors’ real estate agent, including any offers to purchase, without the consent of the father. For clarity, the property shall be sold to the first purchaser making a reasonable offer as determined by the mother on recommendation of the vendors’ real estate agent;
f. the father is ordered to immediately execute any and all documentation deemed necessary and presented by counsel for the mother in order to list, sell and close the sale transaction of this property;
g. the costs to prepare the home for sale, as recommended in writing by the real estate listing agent, shall be the equal responsibility of the parties;
h. the father shall from be responsible from the date of this decision for all carrying costs of the property until it is listed for sale. The parties from the date of this new listing shall be equally responsible thereafter for the mortgage, property insurance, heating and property tax liabilities until the closing date of the sale of the property; and
i. all proceeds of sale, less payment of the property’s disposition costs, shall be held in trust by the vendors’ real estate agency pending order of the court; and
j. any issue arising out of this order for the listing and sale of the property may be brought to court on short notice.
Father’s Motion for s. 30 Assessment Regarding Custody and Parenting
[34] The father seeks an order pursuant to s. 30 of the CLRA directing that an immediate parenting assessment be conducted by Ms. Sandra Kapasky, with her recommendations regarding custody and parenting.
[35] Section 30 of the CLRA contains the following relevant provisions:
30 (1) The court before which an application is brought in respect of custody of or access 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 and with or without a request by a party to the application.
(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.
(15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
[36] Mr. Hutchinson’s November 8, 2019 motion seeking to vary the Trial Decision:
a. in awarding him sole custody, primary care and primary residence of the children, with the mother to have access and parenting every second weekend;
b. in ordering that the children’s schooling in Ottawa cease and that they attend school in Maxville;
c. in ordering the mother to pay child support and s. 7 expenses to the father; and
d. in permitting the father to purchase the mother’s interest in the matrimonial home;
is twelve months after the Trial Decision award of sole custody and primary residence to the mother.
[37] The children in this case have since October 2018, resided principally with the mother during the academic year. Assessments are problematic when a party is seeking to vary a long-standing residential status quo. The risk is that the parent seeking to change that residential status, lacking real evidence to warrant such a change, is hoping to gain evidence and support for such a change through an assessment, akin to an hopeful fishing expedition: Haggerty v. Haggerty, 2007 ONCJ 279, [2007] O.J. No. 2534, para 7.
[38] The mother’s January 24, 2020 response to the father’s motion to change the Trial Decision also seeks to vary that decision in that the mother amongst other things requests:
sole custody of the children;
to delete the requirement in the Trail Decision that she must first consult with the father as to decisions regarding the children;
that the father shall have access every second weekend, instead of three consecutive weekends as awarded in the Trial Decision;
as well as several orders as to her authority to sell the matrimonial home.
When Are s. 30 Assessment Necessary and Appropriate
[39] The admissibility of expert evidence pursuant to s. 30(15) of the CLRA requires that it be:
a. relevant;
b. necessary in assisting the trier of fact;
c. not be prohibited by an exclusionary rule; and
d. that the presenter be a properly qualified expert: J.J.B. v. G.G.B, [2003] O.J. No. 4073, para. 10 and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[40] To be admissible, the opinion of the expert must be necessary:
a. in providing information which is likely outside the experience and knowledge of a judge;
b. needed to enable the judge to appreciate the matters in issue due to their technical nature; and
c. the subject matters of the inquiry are such that an ordinary person would be unlikely to form a correct judgment if unassisted by persons with special knowledge; J.J.B., para. 10.
Nature of Complaints in Support of Need for s. 30 Assessment
[41] Mr. Hutchinson relies upon the following alleged conduct by the mother to demonstrate the need for a s. 30 assessment, namely that she:
a. effectively made several attempts to alienate the children from him, including withholding the children, denying him access and criticizing him in front of the children;
b. has often involved the children in the conflict between the parties;
c. changed the children’s school to Ottawa without consulting him;
d. failed to share information pertaining to the children with him on a timely basis;
e. deliberately scheduled appointments and activities during his scheduled time with the children;
f. left the children in the care of others rather than with him when she was unavailable to care for them;
g. failed to act in the children’s best interest and placed them at risk in failing to comply with Covid-19 lockdown protocols;
h. failed to engage appropriate counselling and services for the children’s specific educational needs;
i. acted contrary to medical determinations regarding the children and has made unilateral decisions as to their healthcare;
j. failed to ensure the children’s regular attendance at school as evidenced by their poor school attendance records, which has long term implications to the children’s social, educational and professional development; and
k. the children’s poor school performance records are indicators of the clinical issues the children may be suffering.
[42] The mother denies the father’s allegations as to her level of care of the children. She makes many similar allegations against the father.
[43] Counsel for the father in argument acknowledged that both parents are involving the children in the parental conflicts in this litigation.
[44] The father in March 2020, unsuccessfully brought a motion making similar allegations of the mother breaching Covid-19 protocols. The father challenges that decision in alleging that the mother misled the court on that motion.
[45] As to the father’s argument that the mother has acted unilaterally as to the children’s health care, the evidence indicates the father previously challenged the children’s family doctor and his diagnosis that the older son was suffering from ADHD. The father then unilaterally changed the children’s family doctor.
[46] Like the father, the mother also submits that the father has opposed the engagement of academic counsellors for the children.
[47] The father’s above grounds (a) to (j) of alleged misconduct by the mother and the mother’s similar allegations against the father, are allegations of fact which a court is fully capable of and regularly determines in cases such as this. Such allegations are not matters about which a s. 30 assessor has any better qualifications to decide, or any greater insight than a judge. Those are not clinical issues, matters beyond the expertise of a judge, nor matters a court requires expert opinion evidence on.
[48] Section 30 assessments should be limited to cases in which there are clinical issues to be determined. Clinical issues include behavioural or psychological issues about which the average person would need expert opinion evidence and assistance to understand. They may be appropriate where an assessment can provide expert evidence on the appropriate manner to address the emotional and psychological factors within the family: Baillie v. Middleton, 2012 ONSC 3728, paras 23, 24, 47, 48, Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] CarswellOnt 3335 (Ont. C.A.), Mohajeri v. Stroedel, 2929 ONSC 6554, para. 73 and Jonkman v. Murphy, 2011 ONSC 3917, (Ont. S.C.J.), para. 29.
[49] Speculation that clinical issues might exist or might arise are insufficient to justify a s. 30 assessment: Baillie, para. 28.
[50] The opinion of an expert pursuant to s.30 is limited to where the court requires the help of an expert in an area beyond the expertise of the court: Haggerty v. Haggerty, 2007 ONCJ 279, [2007] O.J. No. 2534, para 6.
[51] The question regarding whether to order an assessment is whether the court is ill-equipped to determine the issue without the opinion of an assessor. The fact that an assessment will be helpful or will provide more evidence on an issue does not justify ordering an assessment, given its resulting delay, cost and intrusion to the children and the parties: Haggerty, para 7.
[52] An assessment should not be ordered if the court on the evidence before it is can reasonably decide the issue without the assistance of a s. 30 assessor: Baillie, paras. 35 and 38.
[53] A s. 30 assessment should not be ordered if the court on all the evidence is in a position to reasonably decide the issues without the assistance of an assessment.: Kramer v; Kramer 2003 CanLII 64318 (ON SC), [2003] O. J. No. 1418, para 36 and J.J.B., para 13. .
[54] The court in determining whether to order an assessment, shall weigh the anticipated benefits from the assessment against the negative effects thereof to the parties and the children. Assessments are intrusive to the children in drawing them further into the parental dispute, can be expensive and cause great delay in completing a matter: Kramer, para 37, J.J.B. para. 10, Haggerty, para 7 and Baillie, para 40.
[55] Section 30 assessments are intrusive to the children and the parties. The court must be satisfied on the evidence presented on a motion for a s. 30 assessment, that the reasons for requiring an assessment more than offset any harm that it might incur. The paramount concern in considering a possible assessment is whether it would be in the best of the children. The issue is whether the evidence of an assessor is required in order to assist the court to make a fair and appropriate determination of the best interests of the children: Root v. Root, [2008] O.J. No. 2716, paras 38 and 40.
[56] A high conflict custody dispute does not in itself justify ordering a s. 30 assessment. An assessment, although possibly helpful, is not required in order to make a custody determination: Baillie, paras. 31 and 33.
[57] The father in his affidavits repeats alleged things the children have said to him about the mother, events in her home and whether they wish to reside with her. The father clearly is questioning the children as to mother and what they do or did while with her.
[58] A court should be reluctant to order an assessment based upon alleged out-of-court statements of children, as to do so would create an additional layer of investigation which will constitute unnecessary intrusion on the children: Root, para. 41.
[59] At 12 and 8 years of age, these children are caught in the conflict between their parents, which the Johnsons are inflaming. The children however are not “toddlers” which otherwise might require an assessment: Ursic v. Ursic, 2006 ONCJ 194, [2006] O.J. No. 2176, para 333 (C.A.).
[60] The parties submit that a trial will be necessary regarding their applications to vary the Trial Decision. The mother for example submits that teachers of the children, the CAS workers who dealt with the numerous complaints filed by the father and by the Johnsons and the medical doctors who have treated the children and who’s medical diagnosis and treatment were challenged by and not followed by the father all need to be called as witnesses.
[61] School officials are able to comment upon the children’s level of school attendance, particularly during this current Covid-19 pandemic.
Involvement of the Johnsons
[62] The father submits that Mr. and Mrs. Johnson have agreed to pay the cost for the s. 30 assessment he is requesting, thus eliminating that negative factor as to whether an assessment should be ordered.
[63] The Johnsons’ undertaking to pay for any assessment is not surprising given their direct involvement in parenting issues of these children and their ongoing determination that the children be removed from the mother’s custody and care.
[64] The Johnsons following the parties’ separation commenced an application for custody of these children in opposition to the parent’s individual claims for custody. The Johnsons pursued their application which was joined to those of these parents until the Johnsons withdrew theirs on the eve of the 2018 trial between the parents.
[65] The Johnsons’ withdrawal of their application just prior to the September 2018 commencement of trial signalled their choice as between the parents, in favor of Mr. Hutchinson. They have remained actively involved in attempting to defeat the mother’s claims regarding her children. Although no longer parties, the rights of Ms. Peever and the children to their relationship are being actively opposed by the applicant and by the Johnsons.
[66] Mr. Johnson was charged criminally with several counts regarding his conduct towards the mother.
[67] The Trail Decision negatively comments upon the Johnson’s fixation in gathering what they considered to be negative evidence regarding the mother, including daily surveillance or monitoring and recordings made by Mrs. Johnson, the illicit installation by Mr. Johnson of a GPS tracking device on the mother’s car, the unauthorized entry into and photographs taken inside the matrimonial home during the mother’s alternating periods of residence there with the children and Mr. Johnson’s engagement of two separate private investigators to track and report upon the mother.
[68] The Johnsons did not learn from their above acts of inappropriate conduct as determined in the Trial Decision. Mr. Johnson ignored that finding and again retained a private investigator in 2019 and between December 31, 2020 to January 2, 2021, in attempting to gather information he hoped would negatively impact the mother’s parental rights as determined at trial.
[69] Two complaints were made to the CAS by Mr. Johnson against the mother on September 25, 2019 and December 4, 2019. The CAS investigated, spoke to the parties and the children, took no action and closed those files.
[70] CAS’ September 25, 2019 report indicates that twelve complaints had been made against the mother in the previous two years.
[71] The Johnsons involvement in the parents’ disputes and issues in this proceeding is escalating the animosity between the parties and thereby using and harming these children.
Office of The Children’s Lawyer
[72] The Office of the Children’s Lawyer and Ms. Mitchell, it’s clinician, were involved in this case and provided two detailed reports dated May 18, 2017 and September 20, 2018, immediately before commencement of the trial.
[73] The OCL clinician interviewed the parties, the Johnsons, others and spoke with the children on several occasions in preparing each of those reports.
[74] The OCL clinician in the second report recommended:
a. sole custody to the mother and primary residence with her during the school year;
b. access to the father three weekends out of four;
c. the parents to share the children equally over the summer school vacation; and
d. the mother to be obligated to inform and consult the father on major decisions regarding the children.
[75] The Trial Decision accepted these recommendations and ordered more detailed provisions thereof.
[76] The father in one of his earlier motions dated August 24 and returnable on September 2, 2020, sought various head of relief including sole custody of the children who he wanted to return to school in Maxville and an order that the OCL be appointed to provide an updated report of a clinician, or in the alternative, that a private custody and access assessment be conducted with the parties sharing the costs.
[77] The mother brought a cross-motion dated September 1, 2020 in which she sought several orders including an order appointing the OCL, with the request for the appointment of Ms. Mitchell as clinician to make recommendations to the court and an order dismissing the father’s alternative motion for a s. 30 private assessment.
[78] The father on September 2, 2020 sought an adjournment of the motions to file his reply to the mother’s cross-motion. The court, on the joint request of the parties, granted an order requesting the OCL to provide an updated clinical investigation pursuant to s. 112 of Courts of Justice Act and the court’s recommendation that Ms. Mitchell, having authored the two previous clinical investigation reports, be reassigned to complete the update report.
[79] An OCL report is a fact-finding procedure and reporting thereon with recommendations. It is not a s. 30 assessment report by an expert: Ganie v. Ganie, 2015 ONSC 6330 and Taylor v. Clarke, 2017 ONSC 1270.
[80] Based on the father’s primary request for and the court’s September 2, 2020 request to the OCL to provide a an updated OCL report by Ms. Mitchell, Mr. Hutchinson thereby acknowledged that expert opinion evidence in the form of a s. 30 assessment was not required on his application to vary the Trial Decision.
[81] The OCL on November 15, 2020, advised that it receives many requests to become involved in custody and access matters and stated: “Unfortunately, due to limited resources we are unable to accept all of those requests and therefore are declining involvement.”
[82] The father thereupon reversed his September 2, 2020 position in bringing this motion for a s. 30 assessment and now arguing that expert opinion evidence is required on his application to vary the Trial Decision. He and his counsel acknowledged in the primary relief sought in his motion returnable on September 2, 2020 and in his consent on that date to the court’s request for an updated OCL report, that a s. 30 assessment and opinion of an expert was not required.
[83] Either party are free to call Ms. Mitchell as a witness at any trial of these applications to vary the Trial Decision.
Testing of Children
[84] Both boys, in Maxville and in Ottawa, have attended French schools.
[85] Both boys have had difficulty academically. Their Ottawa school as a result developed and implemented an individual education plan for each son.
[86] The school also had its psychologist perform a psychological assessment of Jeffrey regarding difficulties he was experiencing in school. That psychological assessment report, dated February 5, 2020, recommends an individual education plan for Jeffrey and specific measures to assist him to learn and facilitate his social and emotional well-being.
[87] The father was provided with the report of the psychologist which he needed to have translated into English. As an anglophone, the father states that he has had difficulty in the past communicating with his sons’ school officials.
[88] Mr. Plouffe, the school psychologist, and school staff involved in developing the individual education plans for each son may be called as a witness by either party if there is trial of the applications to vary. A s. 30 assessment report is not required in that regard.
[89] The mother points to the sons’ current report cards to demonstrate the boys’ current improved academic performance since the creation of such individual education plans and the school’s psychologist’s assessment of Jeffrey.
[90] The parties are required by the Trial Decision to consult the other parent regarding any decision they consider is necessary regarding the children. Absent agreement between the parties, the mother has authority to make all decisions regarding the children.
[91] Mr. Johnson on May 22, 2020, without notice to the mother, contacted and retained the services of Monika Ferenczy who works as an educational consultant and holds a Master’s degree in Education. Ms. Ferenczy had her initial consultation with the father on May 28, 2020.
[92] In contravention of the Trial Decision’s requirement of prior consultation with and giving the mother final decision authority, counsel for the father without notice to and consent of the mother, thereupon improperly requested Ms. Ferenczy to prepare a report regarding the children “for the purpose of validating the position of switching the boys from a French language educational setting, to a French Immersion program setting, in order to allow inclusion of the father’s participation in the education of his children, which has been prevented in the past by the mother and which the language of communication with the school has been a barrier.”
[93] Counsel’s engagement of an expert should state the issue for which the opinion of the expert is sought. It should not seek an opinion to support the client’s wish and list the reasons in support thereof as the father’s counsel did with Ms. Ferenczy.
[94] Ms. Ferenczy complied with the above request from counsel and issued a July 10, 2020 written report entitled “Expert Report, Professional Recommendations For Academic Learning”, in which she:
a. criticized the psychological assessment report obtained by the children’s school and the qualifications of the psychologist who conducted that psychological assessment of Jeffrey;
b. recommended that the children not continue in September 2020 in a French language educational setting, because the language for all schooling to date has been French which creates a barrier for the father in supporting the children’s educational needs and the mother has not supported her children’s education in a French language Catholic school environment;
c. recommended that the children be educated in a French Immersion program within an English language public school board, as that change will facilitate the father’s understanding and participation in his children’s education;
d. concludes the mother has not demonstrated the necessary commitment to a Catholic faith upbringing or in supporting and investing in her children in a French language school;
e. states that such lack of commitment by the mother as sole custody parent has negatively impacted the children’s education by creating an exclusionary experience for them in which they cannot identify as children of an English-speaking family; and
f. expresses her opinion that the above factors have contributed to parental alienation of the father who as an anglophone is unable to support the children due to his difficulty in obtaining information regarding the children from their French schools.
[95] The issue at the 2018 trial was, and on these applications to vary will continue to be, what was in the best interests of the children. The issue will not be the linguistic limitations of Mr. Hutchinson.
[96] Ms. Ferenczy in preparing her report spoke to the father and Mr. Johnson and relied upon their version of events and criticism of the mother. Ms. Ferenczy also had two video conferences with the children. She did not communicate with the mother.
[97] Subject to the breach of the Trail Decision and how this evidence was obtained, the father will be entitled to call Ms. Ferenczy in a trial and attempt to qualify her as an independent expert to provide such opinion evidence.
[98] Contrary to the Trial Decision right of the mother to be informed and her right to ultimately decide such matters, Ms. Ferenczy pursuant to her May 22, 2020 engagement by Mr. Johnson:
a. had the older son undergo a visual skills evaluation by an optometrist, Dr. Corriveau, on July 28, 2020 who wrote a report and recommended forty sessions of vision therapy;
b. had the younger son, despite him having undergone a regular eye examination earlier that year, undergo a visual skills evaluation by Dr. Corriveau on July 28, 2020 who recommended twenty sessions of vision therapy;
c. had the older son undergo an auditory processing evaluation on July 29 and August 12, 2020 by Myriam Grenier, an audiologist, who wrote a report indicating this son has auditory challenges and made recommendations including that he sit at the front of his classroom; and
d. had the younger son undergo an auditory processing evaluation on July 29 and August 12, 2020 by the same audiologist who reports that this son has auditory challenges and made recommendations including that he sit at the front of his classroom.
[99] Subject to the breach of the Trail Decision as to how the above evidence was obtained, the parties will be entitled to call Dr. Corriveau and Ms. Grenier in a trial and seek their qualification as an expert in order to introduce their opinion evidence.
[100] A s. 30 assessment is not required in relation to the opinions of Ms. Ferenczy, Dr. Corriveau or Ms. Grenier. It is the function of a judge who frequently decide whether to qualify a witness as an expert and if so qualified, to evaluate their opinion evidence as an expert.
[101] The issue whether the children should be attending a French school or a French immersion school will be one of the issues on the applications to vary. The father however has not presented or argued that Ms. Sandra Kapasky, his proposed assessor, has any qualifications as an expert in the area of French education of children and thereby requiring that a s. 30 assessment be performed in addition to the reports of Ms. Ferenczy, Dr. Corriveau, Ms. Grenier and with the children’s school psychologist.
[102] The children between 2017 and 2020 have as indicated, been repeatedly questioned and/or tested by different CAS investigators on multiple occasions, by Ms. Mitchell on numerous occasions on behalf of the OCL, by the school psychologist, by Ms. Ferenczy, by Dr. Corriveau and by Ms. Grenier.
[103] The affidavits of the father and Mrs. Johnson indicate they are questioning the children regarding the mother and events while the children reside with her.
[104] Given this high level of prior interrogation and testing of the children by numerous parties including as to points of conflict between the parents, the Johnsons’ inflammation of the same and the factual nature of the matters in issue which a judge is fully capable of deciding without the need for expert opinion evidence of an assessor; further interrogation of these children in the form of a s. 30 assessment should be avoided if possible. This is particularly so as the evidence indicates the court should expect that these children will be pressured by the father and the Johnsons as to what they should say to any s. 30 assessor appointed.
[105] I have concluded on the evidence that the judge hearing the applications to vary the Trial Decision will be able to determine the issues raised without the necessity of a s. 30 assessment.
[106] The issues raised by the father in support of an assessment are adequately addressed by the direct evidence now filed and from the numerous persons who have interviewed and tested these children.
[107] The father has not demonstrated that the children’s current recorded behaviour requires a s. 30 assessment or that the court will need an expert's opinion as to the genesis of the parental conflict or its future prognosis in order to determine the custody issues.
[108] The father’s motion for a s. 30 assessment accordingly is denied.
[109] The parties are directed to request a case conference with the case management judge in order to schedule their applications to vary the Trail Decision.
Justice P. Kane
Released: June 25, 2021
COURT FILE NO.: FC-16-2206
DATE: 2021/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEFFREY HUTCHINSON
Applicant
– and –
JENNIFER PATRICIA PEEVER
Respondent
Decision on motions
Kane J.
Released: June 25, 2021