COURT FILE NO.: FC-20-1986
DATE: 2021-08-03
SUPERIOR COURT OF JUSTICE (ONTARIO)
FAMILY COURT
B E T W E E N:
G.D.S.
Emma Costain, for the Applicant
Applicant
- and -
V.E.S.
J. Alison Campbell, for the Respondent
Respondent
HEARD: May 3, 2021, at Ottawa, Ontario by Zoom videoconference.
Madam Justice T. J. Nieckarz
Decision On Motions
Overview
[1] The parties are parents of N.S., who will be 5 years old on August 30, 2021. They separated before N.S. turned a year old and have been fighting bitterly over his parenting arrangements since.
[2] Each parent has motions before the court. To their credit, the parties were able to resolve some of the issues in the motions, which formed the basis of my Endorsement dated May 4, 2021. In short, the parties agreed to the disclosure of the Ottawa Children’s Aid Society (“CAS”) file and to request the involvement of the Office of the Children’s Lawyer (“OCL”) pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Father has agreed to defer his request for child support.
[3] This decision pertains to the following two issues:
a. The Applicant (Father’s) request for an Order that the Family Court Clinic Assessment report of Dr. Wood dated April 25, 2019 (the “Assessment”) be admitted into evidence in this proceeding. In the alternative, the Applicant seeks leave to have the Assessment provided to the OCL for the purpose of their report, and to be able to adduce evidence at trial regarding the information and opinions contained in the Assessment.
The Respondent (Mother) takes the position that the Assessment is not admissible by virtue of the statute pursuant to which it was conducted. She argues that had she known it could be used in the family court proceeding, she would not have consented to it being done. She further argues that the Assessment is based on outdated information such that its probative value, which in the form of admitting the report or simply calling the assessor, does not exceed the prejudicial effect of granting the relief sought by the Father.
b. The Respondent (Mother’s) request for additional parenting time. She seeks to increase her parenting time from three Sundays a month to each Saturday from 2 – 5 p.m. While she takes the position that supervision of her parenting time is no longer necessary, she is agreeable to it continuing for the time being provided that the Father continue to share the cost, including the cost of this increase.
The Father’s primary objections to additional parenting time is that this leaves him with no uninterrupted weekend time with the child and places an additional financial burden on him. The Father also expresses concern that the third-party supervisor is no longer willing to provide supervision.
The Facts
[4] The parties were in a short-term relationship, having dated for a year and lived together for approximately six months when N.S. was born. They separated in May 2017, subject to a number of unsuccessful attempts at reconciliation.
[5] What contributed to their relationship breakdown or the chaos that ensued with respect to the parenting arrangements for N.S. is very different, depending on which party’s version of events is believed.
[6] The Mother argues that the Father was physical, verbally, emotionally and financially abusive. She alleges that this abuse extended to a family pet and the child, N.S. She alleges that she ultimately left the home with the child, fearful for the life of the child.
[7] The Father paints a much different picture of the Mother having significant mental health concerns that cause delusions and erratic behavior.
[8] The parents have been involved with the CAS as a result of the conflict between them, since prior to their separation. There have been various allegations of abuse made by the Mother against the Father that have not been verified. The Mother has contacted the police to report the alleged abuse on various occasions, including one allegation of sexual abuse in the form of inappropriate sexual touching. None of the allegations have been verified by the CAS or resulted in criminal charges against the Father.
[9] The Father has also made reports to the police, including one report in 2017 when the Mother left the home with the child to live elsewhere, and another in January 2018 when she arrived at the Father’s home one evening intoxicated, trying to gain access to the child and making death threats, and another in July 2018 when the Mother attempted to remove the child from the Father’s home, is alleged to have assaulted the Father and thrown a rock through the window.
[10] The Mother has been charged with assault with a weapon, assault causing bodily harm and mischief to property. The Mother states that charges were eventually withdrawn.
[11] The situation was so high conflict that the CAS commenced a protection application in August 2018. The child, who had been living firstly with the Mother and then in the shared care of the parties, was placed in the temporary care and custody of the Father, subject to the supervision of the CAS.
[12] The Mother’s parenting time moved to supervised only. Initially supervision was by the CAS. The Mother eventually was able to move towards unsupervised, overnight parenting time.
[13] As part of the protection proceedings, the parties participated in a Family Court Clinic Assessment. The report was delivered April 25, 2019. The Assessment addressed the issues pertaining to the Mother’s mental health and alleged abuse by the Father.
[14] Following mediation, the parties entered into a shared parenting arrangement. The arrangement was confirmed in Minutes of Settlement dated October 9, 2019. The Minutes of Settlement provided for the shared parenting agreement and required the parties to follow the recommendations outlined in the Assessment. The parties entered into a voluntary service plan with the CAS, and the protection application was withdrawn.
[15] Before the ink was dry on the Minutes of Settlement further problems arose. The Mother made further allegations of harm perpetrated by the Father, against the child, and withheld the child from him. This led to yet another investigation by CAS and the police.
[16] The result of this investigation was that the Mother was charged with public mischief, obstructing police and criminal harassment. The CAS expressed concerns about the Mother’s actions in embroiling the child in further conflict and subjecting him to yet more interviews by professionals.
[17] In February 2020 the CAS once again began supervising the Mother’s parenting time with the child for one hour a week. This service was discontinued in March 2020 with the onset of the COVID-19 pandemic. CAS has maintained that the Mother’s parenting time should be supervised and that the parties should follow the recommendations outlined in the Assessment.
[18] The parties tried to manage visits on their own and arranged some for the summer of 2020. Things did not go well. There were more allegations by each party; the Mother continued to allege the Father was harming the child, and the Father continued to allege severe mental health concerns such as suicidal threats by the Mother. The Mother had no contact with the child between September 2020 and December 2020 when the parties began using a private parenting supervision service, Renew Supervision Services.
[19] The Mother had parenting time with the child alternate Sundays from 2 – 5 p.m., with the cost shared between the parties. The cost, including notes was approximately $150 per visit. At a case conference before me in April 2021 it was agreed that parenting time would be increased to three Sundays a month.
Analysis
Issue #1: Is the Assessment Report Admissible?
[20] Section 98 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1, provides for assessments of parents and children in the context of a child protection proceeding. The section requires that a written report of the assessment be filed with the court, and form part of the court record and the evidence in that proceeding.
[21] Section 98(14) provides that unless the persons assessed consent, such a report is not admissible into evidence in any other proceeding unless it is an appeal, adoption openness proceeding, inquest or civil action for damages for abuse brought on the child’s behalf. None of those proceedings are applicable in this situation, and the Mother is not consenting to the admissibility of the report into evidence.
[22] The wording of the statute is clear that the prohibition against the report being admissible in a proceeding other than those referenced is not subject to the discretion or leave of the court. The only way such a report is admissible is with the consent of the persons assessed.
[23] The Mother does not expressly consent. This is also not a situation in which implied consent may be found in the Mother’s materials before the me on the motion. The Mother’s materials before me on this motion were:
Notice of Motion
Affidavit of V.E.S. sworn April 22, 2021
Affidavit of V.E.S. sworn April 28, 2021
[24] The Mother’s materials before me do not indicate that she has used the Assessment in any manner to advance her case. I do not have access to the complete Continuing Record and do not know if there are other materials filed by the Mother that suggested otherwise. Based on what I do have, the Mother has referenced the Assessment for the following purposes:
a. brief narrative to say that an assessment was performed in the protection proceeding;
b. explaining why it should not be admitted into evidence in this case;
c. it is referenced briefly in a letter from the CAS that was put into evidence for the purpose of showing their position; and
d. the Mother states she does not object to the Assessment being received by the OCL from the CAS file and the OCL considering it as part of their evidence provided to the court.
The Mother has not referenced the opinions and recommendations of the assessor or any details of the Assessment, but more importantly, she has not used it in any way to advance her case. It cannot be said in these circumstances that there is implied consent.
[25] I do not find that the Mother’s consent to the OCL receiving the Assessment from the CAS and using whatever information they deem relevant, as consent for admissibility of the Assessment in this proceeding. The sole reason being that as of the date of making this decision, I do not know if the OCL has agreed to become involved. The Mother’s consent to the admissibility of the Assessment is conditional on OCL appointment.
[26] There being no consent, the Assessment is not admissible in evidence in this proceeding.
[27] If the Assessment itself is not admissible, are the opinions and recommendations of the assessor admissible at trial? I find that they are.
[28] This issue was considered in detail by Justice Sherr in K.D.C. v. M.C.C., 2007 ONCJ 29. In K.D.C., the maternal grandmother sought decision-making authority and primary care of a young child, and to have the parenting time of the mother supervised. The mother only opposed the request for supervision of her parenting time. The grandmother sought to have admitted into evidence at trial a parenting capacity report that was prepared pursuant to the predecessor to s. 98 of the CYFSA, s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C-11. The mother did not consent.
[29] Upon review of the mother’s materials in K.D.C., Justice Sherr found implied consent. He also found that if he had not found consent, he would not have permitted the report to be filed as evidence at the trial, but would have permitted the authors of the report to give evidence about the information gathered, subjected to the usual evidentiary requirements.
[30] As Justice Sherr noted at para. 30 of K.D.C., the statute prohibits only the admissibility of the report itself. It prohibits the report from being available for public examination. In his opinion, it prohibits a party from admitting it into evidence by giving notice under s. 52 of the Evidence Act, and therefore the special evidentiary status afforded practitioner’s reports under s. 52 is lost. The report cannot be admitted into evidence for the truth of its contents with leave of the court. The authors of the report must be called to give direct evidence.
[31] I agree with Justice Sherr’s conclusion that the statute does not preclude the admission of the information and opinions contained in the report. I am sympathetic to the Mother’s position that had she known that the information gathered during the assessment and the opinions of the assessor could be used against her outside of the child protection proceeding she would not have consented. However, the wording of s. 98(14) is very clear that only the report, and not the information and opinions contained therein are inadmissible without consent.
[32] The Mother also argues that the prejudicial effect of the information and opinions in the report outweighs the probative value, and therefore the assessor should not be permitted to give evidence at trial and the Assessment itself should not be disclosed to the OCL unless they happen to see it while reviewing the CAS file.
[33] Firstly, with respect to disclosure of the Assessment to the OCL. In paragraph 44 of the Mother’s affidavit sworn April 22, 2021 the Mother states that she has no concern with the OCL receiving the report through disclosure of the CAS file to them as she believes there is a strong benefit to the CAS report being presented to the court only as the OCL views relevant, and through the “holistic lens” they would provide.
[34] The Father has expressed concern that if, for some reason the Assessment is not in the CAS file or not disclosed by the CAS to the OCL, he wishes to ensure that the OCL has access to it. I agree that this makes sense. The Mother herself has acknowledged the value of the Assessment being considered by the OCL and a holistic view presented to the court. It is difficult to reconcile her position that Assessment may be disclosed to the OCL through the CAS but not the parties.
[35] Whether or not the OCL becomes involved and considers the Assessment in whatever way the OCL agent deems appropriate, the opinions and recommendations contained in the Assessment are clearly relevant to this proceeding and extremely valuable to a trial judge to have. If the OCL becomes involved, the parties may not feel a separate need to call the assessor to give evidence as to the investigations performed, their opinions and recommendations, but either party may ultimately feel it is still important depending on the use made of the Assessment by the OCL.
[36] The Assessment was provided to me directly by counsel. It is dated now but provides a comprehensive review of the backgrounds of the parties, the issues and recommendations. Many of the themes and allegations addressed in the Assessment are still live issues in this family proceeding. For example, the Mother’s allegations that the Father is abusive to her and the child, and the Father’s allegations and assessor’s conclusions with respect to the Mother’s mental health. Various incidents the assessor considered have been raised in this proceeding.
[37] I appreciate that certain needs of the child, who was only a toddler when the Assessment was conducted, may have changed. I also appreciated that the circumstances of each party may have changed in the past two years, such that certain conclusions drawn in the report may or may not be still be applicable. Any concerns with respect to the Assessment being outdated are best determined by the trial judge in the context of weight to be given to the evidence of the assessor as opposed to admissibility of the evidence.
[38] The Assessment recommendations continue to be an important part of the CAS position on which the Father relies heavily and provides valuable insight into the ongoing themes between the parties to assist a judge in understanding the high conflict nature of this case the ability of each party to meet the needs of the child. I find that the Assessment is highly probative of the issues before the court. Any prejudice to a party in considering the evidence of the assessor that arises from changed circumstances of the parents since the assessment was conducted and changes in the needs of the child, or otherwise, can be assessed in the context of weight.
[39] As a final note, while I appreciate that the parties both needed guidance on this issue at this early stage to know how to proceed, issues with respect to the Assessment may have been best dealt with either by the trial judge or later in the proceeding. For example, my conclusions with respect to certain issues such as consent may have changed if I had known if the OCL was involved, given the Mother’s position that she consents to the OCL putting the Assessment opinions and recommendations before the court. Certain arguments such as what to do if the CAS file did not contain the Assessment for some reason may have been unnecessary if the parties already had the file before the argument of this motion. Similarly, if the parties already had the s. 112 report and knew what use was made of the Assessment by the OCL, it may be that no argument was necessary as to whether the assessor should be called to give evidence. In some respects, this decision is based on a series of “what ifs”. For this reason, this decision is subject to any decision of the trial judge to the contrary, as they will have more complete evidence than I have. Furthermore, any issues as to the ability of the assessor to testify as to opinions and recommendations are still subject to the usual rules of evidence pertaining to experts and otherwise.
Issue #2: Shall the Mother’s Parenting Time be Increased to Weekly?
[40] The Mother currently has parenting time of three hours a week, three times a month. There is no evidence that supervised parenting time has not gone well from the perspective of the needs of the child. The supervisor notes that are available do not identify any concerns for the child. The Father does not allege any parenting concerns provided the Mother’s time is supervised. The Father’s evidence is that the child is doing well and enjoys his time with his Mother.
[41] This is a young child. To maintain a close and loving bond, it is important that he have more frequent contact with his Mother. Having a two week gap with no parenting time does not strike me as being in the best interests of this child. Furthermore, efforts should be made to maximize the time between parent and child that is consistent with that child’s best interests. The Mother and the child have already had significant disruptions to their time together arising out of the pandemic and lack of availability of supervision services. This is not the fault of either of the parties, but another unfortunate casualty of COVID-19.
[42] The Father’s primary concern of being able to have weekend time with his son once a month to engage in activities such as camping is valid, but can easily be addressed by adding the extra time to a weekday instead of a weekend. I appreciate this is sometimes more difficult given how hectic weekday schedules can sometimes be, especially given the Father’s work schedule and the child’s school schedule when he returns. It is still important and still needs to be done, but perhaps with some slight modification to the hours to ensure that the child’s evening bedtime routine is maintained.
[43] The Father’s other objection is to having to pay for an additional weekly supervised parenting session given his limited income and the lack of child support currently being paid. Both parties have limited income and I am certain that the cost of supervised parenting time to them over the past number of months has been a financial burden. The Father shares equally the cost of three sessions a month. His income is greater than that of the Mother, but he has primary care of the child and is not in receipt of child support. It is not unreasonable for the Mother to pay the cost of this extra session herself, subject to any retroactive adjustments made if the Father claims child support for this period.
[44] Finally, I recognize that there may not be supervision services available to accommodate the additional weekly parenting time. The private supervision service used by the parties terminated services to the Mother immediately prior to this motion. The Father did not know why and there was no evidence from the Mother on this point. The parties will need to find a different service. That service may or may not be able to accommodate the amount of parenting time ordered. This uncertainty should not mean the time is not ordered.
Order
[45] In light of the foregoing it is ordered that:
a. If the Assessment is not contained in the CAS file, the parties shall disclose it to the OCL agent appointed, if any.
b. The Assessment shall not be attached to the OCL s. 112 report that is filed with the court and shall not form part of the court record.
c. Subject to any determination to the contrary by the trial judge, the Assessment shall not be admissible as evidence at trial.
d. Subject to any determination to the contrary by the trial judge who will need to consider the normal evidentiary rules with respect to the testimony of experts and otherwise, the authors of the Assessment may be called as witnesses at trial to give evidence as to the contents of the Assessment.
e. Unless the parties agree otherwise in writing, the Mother’s parenting time shall be supervised and take place as follows:
i. Three Sundays each month from 2 p.m. until 5 p.m., with any costs associated with supervision to be shared equally between the parties;
ii. One weekday from 5:30 p.m. until 7:30 p.m., to occur during the week that the Mother does not have the child on the following Sunday, with any costs associated with supervision to be paid by the Mother; and
iii. If the parties cannot agree on the weekday, it shall be Thursday.
[46] Costs of these motions are best determined by the trial judge.
The Hon. Madam Justice T. J. Nieckarz
Released: August 3, 2021
COURT FILE NO.: FC-20-1986
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
G.D.S.
Applicant
- and -
V.E.S.
Respondent
DECISION ON MOTIONS
Nieckarz J.
Released: August 3, 2021