COURT FILE NO.: FC-20-1306 DATE: 2022/02/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.W., Applicant AND N.A.-Y., Respondent

BEFORE: Blishen J.

COUNSEL: Diana Carr, for the Applicant Ceilidh Henderson, for the Respondent

HEARD: February 3, 2022

ENDORSEMENT

Introduction

[1] The Applicant father’s motion requested increased parenting time by way of an order implementing the interim recommendations of the Office of the Children’s Lawyer (OCL) Social Worker (SW), Chantal Bourgeois, provided at a disclosure meeting on Sept. 10, 2021. Those recommendations included a gradual transition over an eight-week period to equal parenting time on a 2-2-5-5 schedule for the two children of the relationship.

[2] The father, Mr. W. is facing criminal charges of assaults on the mother, Ms. A-Y. and uttering threats to her and her parents. The trial is now scheduled for April 2022.

[3] Ms. A-Y. contested the motion and argued the existing interim order should continue until the outcome of the father’s criminal trial and a possible trial in this court.

Background

[4] The parties met in 2008 when Ms. A.-Y. was almost 18 and Mr. W. was 21. Ms. A.-Y. was working as an exotic dancer and Mr. W. was involved selling drugs as part of a gang. He went to jail for most of 2009. Both indicated they wished to get out of the life they were living at that time. After Mr. W. was released and completed his probation, the parties began residing together in 2012. They married under Islamic law in January 2012.

[5] There are two children of the relationship a son Su. age 9 and daughter Se. age 4. In 2017 Su. was diagnosed with Autism Spectrum Disorder (mild severity). He is high functioning but requires accommodations, support, and assistance at school which he receives through an Individual Education Plan (IEP). Se. has no identified special needs.

[6] Both parties acknowledge a conflictual relationship which involved both physical and verbal disputes in the presence of the children. Ms. A.-Y. was concerned Mr. W. was reinvolved with friends with criminal ties and was selling cannabis. Ms. A.-Y. suffered from postpartum depression and anxiety. She indicated to the OCL SW she “became ill” in June 2019 and her illness lasted a year.

[7] The parties agreed to separate in May 2020. Ms. A.-Y. resided with her parents and now has her own home. She does not work outside the home. Mr. W. resides with his parents. He worked at restaurants, upgraded his education and was recently accepted into the Algonquin College paramedic program to commence September 2021 but could not attend given his upcoming criminal trial.

[8] After separation, the parties initially cooperated, and Mr. W. saw the children regularly and unsupervised. They agreed to attend mediation.

[9] In July 2020, Ms. A.-Y.’s parents and brother returned to Ottawa and according to Mr. W., Ms. A.-Y.’s attitude changed. She began limiting his contact with the children and was not communicating with Mr. W.

[10] In July 2020, Ms. A.-Y. reported domestic violence to the Ottawa Police and on August 25, 2020, Mr. W. was charged with three historic assaults on Ms. A.-Y. and uttering threats to her and her parents. He was released on conditions not to contact or go near Ms. A.-Y., her parents, and the children. He was permitted to have contact with the children if ordered by this court. Communication is now through the grandparents or counsel.

[11] Mr. W. filed an application and brought a motion regarding parenting under the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (CLRA).

[12] On October 13, 2020 a consent order was granted for supervised parenting time Wednesdays and Saturdays.

[13] On January 15, 2021 a further consent order was made extending parenting time to Mr. W Monday. 3:30 – 6:30 PM, Wed. 2 – 6 PM, Sat. from 10 AM – 2:30 PM and on alternating Saturdays from 10 AM overnight to Sunday 2:30 PM. Supervision was removed for two hours on Saturdays and two hours on Sunday and for the pickups at the children’s school/daycare. Mr. W.’s parents were the supervisors. Mr. W. could call the children directly on FaceTime Tuesday, Thursday, and Friday at 7:15 AM for up to 15 minutes. An order was made referring the matter to the OCL.

[14] The OCL accepted the referral and began a social work assessment in mid- April 2021.

[15] On September 10, 2021 the SW, Ms. Bourgeois had a disclosure meeting with the parties. Based on her investigation Ms. Bourgeois made several interim recommendations pending the criminal trial, including to remove all supervision and to gradually increase Mr. W.’s parenting time over eight weeks commencing immediately to culminate in equal time sharing on a 2-5-5-2 basis. Certain conditions were recommended.

[16] Ms. A.-Y. did not agree to implement the recommendations for increased parenting time but on September 16, 2021 the parties agreed to terminate all supervision. The order to that effect was not signed until January 6, 2022 due to an administrative error.

[17] Mr. W.’s parenting time has remained as ordered on January 15, 2021 with the exception that it is no longer supervised.

Evidence

Ms. A.-Y.’s Evidence

[18] Ms. A.-Y. lives in a three-bedroom home within walking distance of her father’s home where her mother is also currently living. She is not working outside the home. She has always been a stay at home mother and very involved with her children. In particular, she has gone to significant lengths to get Su. and herself professional support as outlined in the OCL report.

[19] The OCL report indicates she presented as warm and welcoming. Su.’s behavoiur was very demanding and challenging. When Ms. A.-Y. was able to focus her attention on Se., she was observed to be a warm, loving, playful and patient mother.

[20] Ms. A.-Y. continues to have concerns about Mr. W.’s behaviour and the safety of the children in his care since separation. Those concerns include:

1. Reports from the children that their father yells and swears on the phone. These reports are hearsay and cannot be admitted as to their truth.
2. The frequency of FaceTime calls which she finds disruptive and believes are Mr. W.’s way of bullying and controlling her. There are many more calls than was court ordered.
3. Mr. W. pressures Su. to call him at all times of the day and becomes upset if he doesn’t. She has overheard Mr. W. telling Su. that if he doesn’t cooperate on the calls, Mr. W. won’t buy him things or take him places
4. Mr. W.’s statement on a call that “As long as I’m alive you will not have another Daddy”. Mr. W. deposed this statement was made to reassure Su. and was taken out of context.
5. Su. has urinated after parenting time with his father. There is no evidence as to how often, when or under what circumstances. Mr. W. indicated on one occasion Su. urinated in the care on his way home from a visit and he was too shy to ask his grandfather to stop the car.
6. Lack of supervision on visits. Se. had a bloody nose and fell off her bike. There is no evidence there are anything other than normal childhood injuries.
7. The children have digestive issues but are eating junk food on visits.
8. The children report driving around at night and meeting friends of their father’s. This is denied by Mr. W.
9. Mr. W. draws on Se. with ink which is hard to remove.
10. Se. has bruises on her buttocks and says, “Daddy bites my bum bum”.
11. She no longer identifies as Muslim, but Mr. W. continues to say they are Muslim and insists the children eat Halal food at his home.
12. She recently saw Mr. W. near her home in breach of the existing release conditions. She reported this to the police. She worries about her safety and privacy and may now consider moving. Mr. W. denies being near the home.

[21] In summary: Ms. A.-Y. still feels controlled by Mr. W. and worries about continued criminal involvement; has issues with some statements by Mr. W. reported by the children and which she has overheard; worries about the children’s safety; is concerned about Mr. W.’s efforts to control their religious upbringing and is concerned that Mr. W. is influencing Su.’s views and preferences and his relationship with her.

Mr. W.’s Evidence

[22] Mr. W. acknowledged the verbal and some physical altercations with Ms. A.-Y. during the relationship, some of which were observed by the children. He was open in reporting to the OCL gang related activity and criminal convictions for gun possession, drug possession (crack cocaine) with intent to traffic, assault and uttering a death threat against bouncers in a strip club. He was incarcerated from December 2004 – May 2006 and again for most of 2009. After meeting Ms. A.- Y., as was noted above, they both wished to get out of the life they were living.

[23] Mr. W. deposed that he was a very involved father when the parties resided together. He home schooled Su. for Senior Kindergarten and took him to activities some of which were designed for children with autism. Mr. W. took an active parenting role particularly when Ms. A.-Y. was ill for a year.

[24] He now resides with his parents in a separate one-bedroom unit in the basement with play space for the children. He takes the children to nearby parks and water parks in the summer.

[25] He would like to obtain his own housing near the children’s school/daycare but has no concrete plans. He is working at a pizza restaurant and hopes to be able to re-enroll in the paramedic program at Algonquin College once there is a resolution to his criminal charges.

[26] His parents were the supervisors of his parenting time. They are loving and attentive to the children and help when needed.

[27] Mr. W. is in direct communication with the teachers at Su.’s school and Se.’s Daycare and follows up on the children’s progress. He is involved with their schoolwork and is able to coach Su. when needed.

[28] Mr. W. attended a six session Parenting Through High Conflict Separation and Divorce program at Family Services Ottawa (FSO) completed in March 2021 and a six-week Anger Management Program at FSO completed in June 2021. He has received individual counselling and is registered to attend a Just for Dads program.

[29] The visits with the children have gone extremely well, they are thriving in his care and he would like to gradually increase his parenting time as recommended by the OCL social worker who observed him to be a welcoming, polite and warm man, attentive to the needs and interests of his children.

[30] Mr. W. has concerns about the children in the care of Ms. A.-Y. as follows:

1. Ms. A.-Y. hired a 15-year-old babysitter who he is concerned will not be able to care for a special needs child with some behavioural challenges like Su. He is also concerned about Ms. A.-Y.’s mother watching the children with whom Ms. A-Y. has a toxic relationship.
2. Ms. A.-Y. reported to the OCL SW that her mother had an alcohol problem but believes she is sober now. She has been diagnosed with bipolar disorder and PTSD. Mr. W. reports the grandmother falls asleep and leaves the children unsupervised. It is unclear when this may have happened and how this information came to his attention.
3. Se. reports “Mommy says you’re bad and you are going to jail”.
4. The children report the mother yells at them. As with statements by the children reported by Ms. A.-Y. There are hearsay problems with the admissibility of these statements as to their truth.
5. Ms. A.-Y. interferes with the court ordered Facetime calls and will hang up at times. She has started to record some of the calls.
6. It was reported by the OCL that Su. has displayed violent behaviour towards his mother, grandmother and towards the OCL SW and CAS worker. Mr. W. is concerned that Ms. A.-Y. does not know how to discipline or control Su.’s behaviour. Ms. A.-Y. has, according to the OCL report, gone to significant lengths to obtain professional support for both her son and herself, including Crossroads and school resources for Su. and supportive counselling for herself through Ottawa Victims Services and Western Ottawa Community Resource Centre.
7. Su. was not encouraged to attend school via Zoom last year and was absent for 63 of the 194 days. He wants to spend a great deal of time on his Nintendo and it requires skill and attention to direct him away from that. Mr. W. is able to do that, but he questions whether Ms. A.-Y. has that ability.
8. Mr. W. is concerned that Ms. A.-Y. has been in touch with former acquaintances who are drug dealers/gang members/pimps. There is no evidence as to the source of this information.

Report from the OCL

[31] The OCL SW, Ms. Bourgeois assessed the family over a five-month period from April to September 2021. In addition to five virtual and face to face interviews with the parents and extensive written communication, she observed the parents and the children in both homes and interviewed Su. privately at his father’s home after two attempts to interview him at his mother’s home. She also received information from 18 professional collateral contacts and interviewed all four grandparents.

[32] Ms. Bourgeois recommended a gradual increase in Mr. W.’s parenting time in three steps over an eight-week period commencing in Sept. 2021 to culminate in a 2-5-5-2 shared parenting schedule, with conditions and other recommendations as follows:

• Step 1 for 4 weeks - Every second weekend from Fri. pick up at school to Sunday at 6:30 PM and on the alternate Sat. from 10 AM – 2:30 PM, Mondays and Wednesdays pick up at school (or 3:30 PM) to 6:30 PM.
• Step 2 for 4 weeks – Every second weekend from Friday pick up at school (or 3:30 PM) to Monday morning drop off at school and continue the Monday and Wednesday afternoons.
• Step 3 – Equal parenting time on a 2-5-5-2 parenting schedule.

[33] This parenting plan was conditional on:

1. Neither parent to consume alcohol or drugs during or 12 hours prior to parenting time.
2. No firearms or any weapons to be near the children.
3. Never to knowingly expose the children to anyone involved in gang related activity.

[34] It was further recommended that both parents receive individual counselling to manage anxiety and frustration and continue with parenting education and support for children with Autism Spectrum Disorder to help Su. with emotional and behavioural outbursts.

[35] Ms. Bourgeois indicated that if the parties consented to the interim recommendations, the OCL file would remain open and an update could be provided in six months to re-assess the family situation and the children’s reaction to the new parenting schedule, after the criminal trial and judgement.

[36] Ms. A.-Y. did not agree to increased parenting time, but she did agree to remove the supervision. A consent order to that effect was granted on January 6, 2022.

[37] A report dated October 28, 2021 was provided to the parties and the court, but it was not complete due to the missing criminal judgement and some police information and was discontinued. The investigator noted a further report could be requested after the criminal judgement.

[38] Although the interim recommendations were not implemented, and the report was discontinued, Ms. Bourgeois had extensive involvement with the family, made observations and had interviews with the parents and Su. She refers to Mr. W as M. and Ms. A-Y as N. throughout the assessment.

Observation of Su. and Se. with Father

[39] In observing Su. and Se. with their father the social worker noted at pg. 15 of the report:

Overall, the observation between Se., Su. and their father was positive. Su. presented as a verbally expressive child who was curious and interested in play…Su. was quite independent…and appeared to have healthy self-confidence… Overall, Se. presented as a smiley and happy little girl who sought out her father’s attention and affectionate.

M. presented as a very welcoming, polite and warm man who did not appear stressed by the observation process. With the children, he remained by their side attentive to their interests and needs… He was cuddling with Se on his lap and spoke lovingly of the children’s strengths. He remained engaged and participated in activities with the children and ensured they had a wide variety of foods available to them…there was no need for discipline and the children were well behaved. The children appeared comfortable and at ease with their father.

Observation of Su. and Se. with Mother

[40] The observation between Se. Su. and their mother was described as quite a challenge.

[41] The OCL noted at pg 15 -17:

Su could be heard yelling “mother fucker” to his mother…

Su. swore, kicked, hit and tried to bite his mother. N.. told Su. to stop hurting her and tried to restrain his arms to prevent him from hitting her. N. brought out the visual timer and put it on for a minute so that he could have a time out and calm down. Su. hid under the comforter of his bed…He then got up angry and slammed the door…. Su. stayed upstairs…Su. reached over and threw something taken from the top of the bookshelf…He kept yelling that he wanted his fucking laptop and slammed the door. N. told him not to swear and slam the door. After a few Minutes N. brought him a bottle of water saying he had to hydrate himself…

…N. called up to Su. to tell him his snack was ready to eat at the table. Su. refused to come to the table and screamed and swore.

Overall, the observation between Se. Su. and their mother was quite a challenge Su. never joined the interaction with his mother and sister. Su. yelled at his mother, swore quite vulgar language for his age, and kicked, hit and bit his mother…Su. had already met this assessor at his father’s home and engaged in appropriate dialogue but swore at this assessor yelling and swearing to get out of his home… Se. was happy and excited to show her home and her bedroom but became quiet when her brother started to hit, yell and swear at her mother. When free of her brother’s behaviour, Se. relaxed and engaged in dialogue and games with her mother and would laugh and smile. However, there were times when Se. appeared to be trying to get her mother’s attention and her mother was distracted dealing with Su.’s behaviours…

N. presented as a warm and welcoming woman. She was highly attentive with the children and very much focused on making sure they had enough food and water. There was no physical affection observed between Su. and his mother but his behaviours were a significant obstacle to this. N. tried to establish rules and limits…but she was not able to get his compliance. To the contrary, Su. became increasingly aggressive until he got his way and was left alone upstairs. When N. was able to focus her attention on Se., she was observed to be warm, loving, playful and patient. Se. smiled and appeared to enjoy her mother’s affection and attention.

Interviews with Su.

[42] Ms. Bourgeois attempted to interview Su. on two occasions at his mother’s home both of which were unsuccessful. On the second attempt Su. ran at the assessor, pushed her in the stomach and said, “fuck off”. He went around his room swearing and into his closet still swearing. The decision was made that the next attempt to interview Su. would be at his father’s home. Ms. A-Y. agreed and apologized for Su.’s behaviour indicating she doesn’t know what to do about it.

[43] Ms. Bourgeois was able to interview Su. privately on two occasions at his father’s home.

[44] Su indicated he didn’t know where he learned the swearing and he was “just mad” out of “nowhere”. He said his mother deserves to be hit and bit “because she doesn’t take me outside and all of the things she does to me.”

[45] Regarding the parental conflict Su. stated at pg. 20 of the report:

Mommy and Daddy are not friends because of the fighting. Daddy hates Mommy and Mommy hates Daddy…Mommy and Daddy don’t talk to each other. They are not allowed to talk to each other…

Su. stated. “Daddy is good but Mommy is not.” Last night she took away the iPad. Daddy takes care of me and always calms me down and takes me to nice places. I want to live with Daddy right next to Mohammed’s house. I want to play with him every day... Mommy wants to figure out how to kill Daddy because she didn’t like Daddy…Daddy does not like Mommy because Mommy is hurting Daddy so he just wants to go away.

At pg. 22 in regarding views and preferences Su. stated in the first interview:

“I want to live with Daddy forever until I’m older to get a new house. I have a lot of fun with Daddy. Daddy is a thumbs up and Mommy is a thumbs down.” He stated his mother spanks him with a belt. “It is the hardest golden belt. It hurts really bad. After that she was thinking she stole all of my money. She took a lot of money.”

In the second interview Su. stated he wants to live with his father and live with him more than his mother. He said his Daddy is able to help him calm down and he brings him for a walk when he gets angry. Su. thinks he is better behaved at his father’s house and said he follows the rules.

Overall Impressions and Observations of Su.

[46] In that section of the report at pg. 22, Ms. Bourgeois noted:

At his father’s home, Su. never swore, hit or threw items. Su. remained calm and participated in play throughout both interviews…

At the end of both successful interviews Su. offered to help put away toys and was very helpful…Overall Su. presented as a calm, loving and engaged young boy with his father but was observed to be verbally and physically aggressive and emotionally dysregulated with his mother at her home.

Discussion

[47] In this section of the report at pp. 23 – 24 Ms. Bourgeois indicated:

Throughout the assessment process, N. remained participatory, cooperative and responsive. She made efforts to make herself available and clearly wished to support her son's engagement in interviews and observations.

N. has very few positive characterizations of M. and her image of him is based on a very tumultuous period N. regularly spoke of feeling free since leaving her marriage and enjoying her ability to grow and be herself without any fear of repercussion

N. has gone to significant lengths to get herself and her son professional support. Su. has been diagnosed with Autism and receives support from Speech Therapy, Occupational Therapy and an Educational Assistant at school. Unfortunately, Su.’s ability to receive professional support from Crossroads Children's Mental Health Centre has been hampered by COVID restrictions and Suleiman's outward resistance or refusal to engage with professionals.

Se. was not observed to be oppositional with her mother but, toward the end of the assessment, the SW was witnessing some difficult behaviours in Se. as well

During the course of this assessment, M. similarly remained participatory, cooperative and responsive. When raising multiple concerns of abuse raised by N., M. generally responded calmly and non-defensively. M. acknowledged that he had an anger problem in the past and spoke in a manner to N. that he is not proud of.

[48] Ms. Bourgeois notes Mr. W also acknowledged physical altercations between the parents when they were angry. She the goes on:

M. stated that he is committed to making the co-parenting relationship work despite their past communication difficulties as a couple. When discussing Su.’s verbal and physical aggression with his mother, M. did not react with satisfaction or claim she was failing as a mother. To the opposite, M. expressed his concern that his son could act that way toward his mother, wished to share his approach to see if it helps and committed to supporting N.’s efforts to parent their children. Su. was observed to be quite a different child with his father. Su. was observed to be compliant, engaged, playful, not aggressive, and helpful. He did have some moments, which were a little oppositional but nothing of significant concern. Se. and Su. were always observed to be playful, engaged and content with their father.

There was no evidence of fear or discomfort when in the presence of their father. In fact, it was the opposite. Se would climb on her father, seek his affection and both wanted to play and engage with their father…Su. consistently and strongly expressed his preference to spend a lot more time with his father

Law and Analysis

[49] The law in the use of parenting assessments before trial has evolved over the years from a view that assessments were for trial where they could be tested, to an approach indicating they could be used on interim motions in “exceptional circumstances”. More recently courts have found assessments useful on interim motions to provide additional probative evidence without necessarily having to prove “exceptional circumstances”.

[50] This evolution was considered by Mitrow, J. in Bos v. Bos, 2012 ONSC 3425 at paras 17, 19-24 and 26-27 as follows:

[17] In the often quoted decision of Granger J. in Genovesi v. Genovesi, 1992 CarswellOnt 268, 41 R.F.L. (3d), 93 D.L.R. (4th) 262 (Ont. Ct. (Gen. Div .)) the court set out the principle that an assessment report prepared for trial should not be acted upon until trial except in exceptional circumstances where immediate action is mandated by the assessor’s report

[19] There is jurisprudence which suggests that it is not always necessary for a court to find “exceptional circumstances” before considering some or all of the recommendations contained in an assessment report on a motion for interim relief.

[20] In Forte v. Forte, [2004] O.J. No. 1738, [2004] O.T.C. 321 (Ont. S.C.J.), (2004), 130 A.C.W.S. (3d) 329 (Ont. S.C.J.), Corbett J. was dealing with a motion for interim custody. In making an order that the mother have interim custody of the children, the court in reaching its conclusion considered the assessment report from the Office of the Children’s Lawyer. That assessment recommended sole custody to the mother with specified access to the father. Corbett J. stated that little reliance was placed upon the recommendation itself but rather weight was placed on the facts set out in the report regarding statements made by the children to the assessor. In addressing the principle as to whether the assessment report should be considered, Corbett J. stated as follows at paras. 7 and 8:

7 Sandro argued that this court should not consider and should place no weight upon the report from Dr. Janzen. There is authority that assessment reports ought to be used at trial but not on interim motions: see Mayer v. Mayer, [2002] O.J. No. 5303, per D. Gordon J., Grant v. Turgeon per Granger J. I agree that an assessment report ought to be approached with caution prior to trial. The court cannot delegate its decision-making authority to an assessor from the Office of the Children’s Lawyer. That is trite law.

8 However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statements made by the children to the assessor. It is not the report’s recommendations, but its substance and analysis that is of value. [my emphasis]

[21] Similarly, in Kerr v. Hauer, 2010 ONSC 1995, [2010] O.J. No. 1506, 88 R.F.L. (6th) 411, 2010 CarswellOnt 2191 (Ont. S.C.J.), M.P. Eberhard J. was dealing with a motion by the father for implementation of the parenting recommendations of Dr. Goldstein contained in a report. The mother requested that the motion be dismissed in the face of a trial date which had been set during a three-week sitting commencing less than two months after the date the motion was argued. Mother’s counsel estimated three weeks to be required for trial and predicted that the focus would be on the cross-examination and challenge to Dr. Goldstein’s report. In making an order on an interim basis that the father shall have the immediate responsibility of decision- making as to the children’s needs, Eberhard J. considered Dr. Goldstein’s report. In doing so, Eberhard J., at para. 5, considered the principle set out by Granger J. in Genovesi, and at para. 7 quoted from the decision of Corbett J. in Forte, in particular quoting paras. 7 and 8 from Forte as quoted above in these reasons

[22] In justifying the propriety of considering Dr. Goldstein’s report, Eberhard J. stated the following:

So, while I naturally accept and follow the caselaw calling for caution at an interim stage when trial is potentially imminent, I also analyze what genuine triable issues should be left alone till more is revealed through evidence at trial and other issues that should be adjudicated on a motion to advance the progress that is ongoing in conferenced based model.

Dr. Goldstein is a psychiatrist. The evidence required for the court to determine the issue is mental health evidence that a psychiatrist, particularly one credentialed to address parenting issues, is an appropriate expert to explore. His opinion took into account parental interviews, testing and observation, as well as input from important collaterals such as the prescribing paediatrician.

This is not a case where the court is delegating its adjudication about parenting to an assessor but one where a relevant expert has provided essential evidence, based on the method and expertise of his discipline. [my emphasis]

[23] I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte and Kerr 2. In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

[24] The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor…

[26] In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that “exceptional circumstances” exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case. Without in any way being exhaustive, these factors may include:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo? b) What other evidence is before the court to support the change requested? c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge? d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross- examine the assessor?

[27] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the discretion.

[51] A similar approach is taken by the court in Jonczyk v Tilsley, 2021 ONSC 2546; Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951 and Calabrese v. Calabrese, 2016 ONSC 3077.

[52] In Jonczyk, Mackinnon J. at para 11 refers to the decision of Chappel J. in Matsinda as follows:

[11] In Matsinda v. Batsinda, 2013 ONSC 7869, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:

32 The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties, and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (Ont. S.C.J.)

[53] At para 12 Mackinnon, J. notes:

[12] The child in this case is two years old. She has already been impacted by parental conflict and exposed to CAS and police involvement on multiple occasions. The earliest available trial date is September 2021, two months shy of a year after the assessment was released. The motion was served on December 11, providing the respondent plenty of time to cross examine the assessor before the hearing. Although this motion can be decided without reliance on the assessor’s conclusions and recommendations it seems important to reiterate that high conflict parenting disputes generally do meet the test of exceptional circumstances. Parents in such cases who dispute the recommendations in an assessment would be well advised to assert the procedural rights available to them before a scheduled motion rather than simply presenting the argument that consideration of the report is better left to trial.

[54] In the case at bar I note the following:

1. The current parenting schedule has been in place for over a year. The order made on January 15, 2021 included a referral to the OCL and contemplated negotiation of a new schedule or temporary court order.
2. The next available trial dates are in Sept. 2022 a year after the OCL concluded her assessment and made her interim recommendations.
3. The report was provided to the court over 3 months before the motion and there has been no formal challenge to the observations or assessment of the OCL SW.
4. The motion was served on Oct. 12, 2021 and there was no request to cross-examine the assessor.

[55] The OCL SW’s observations, interviews with the parents and Su., statements of the children and input from extensive collateral professionals gathered over a 5-month period from April 2021 – Sept 2021, provide third party professional evidence I find of considerable value and assistance in determining what is in the best interests of Su. and Se. on this interim motion.

[56] Mr. W. is requesting an order implementing all the interim recommendations of the OCL assessor to increase his parenting time over an eight-week period. It is important to exercise caution in that regard for the following reasons:

1. There is a general need for caution in considering the implementation of specific recommendations of a parenting assessment, particularly before trial. In addition, it is trite law that the court cannot delegate its’ decision-making authority to an assessor from the OCL.
2. Mr. W.’s criminal trial is scheduled in April 2022, two months from now. He is facing serious charges of assaults against Ms. A.-Y. and uttering threats to Ms. A.-Y. and her parents. Given his criminal record, if convicted, he may be incarcerated.
3. This is a high conflict parenting dispute. That conflict has been dissipated somewhat by the terms and conditions of Mr. W.’s release on the criminal charges. At this point the parents cannot communicate directly with one another. That may change after the criminal trial and judgement.
4. The recommendations of the OCL SW were interim only and provided at a disclosure meeting on Sept. 10, 2021. They were not part of her report which was discontinued.
5. The assessment and report filed Oct. 28, 2021 was discontinued given missing police occurrence reports and the criminal judgement.

[57] Ultimately the court must determine if a temporary change in the existing order for the father’s parenting time is in the children’s best interests with the primary consideration being the child’s physical, emotional and psychological safety, security and well-being. (CLRA ss. 24 (2)).

[58] Considering the relevant best interests factors related to Su and Se’s circumstances outlined in ss. 24 (3) of the CLRA in this case I note:

1. The children are 9 and 4 respectively and have had the same parenting schedule for over a year.
2. Su. is a special needs child with behavioural challenges.
3. Although both parents are warm and attentive to their children’s needs, Su.’s behaviour in his mother’s home was observed to be both verbally and physically aggressive. Ms. A.-Y. had difficulty controlling him. Se. was relaxed, engaged, laughing and smiling with her mother, although her mother was at times distracted in trying to deal with Su.’s behaviour.
4. Su. was a different child in Mr. W’s home - compliant, engaged, playful, not aggressive, and helpful. Se. was smiley, happy and seeking out her father’s attention and affection.
5. Ms. A.-Y. had very few positive characterizations of Mr. W. based on the history of their conflictual and tumultuous relationship.
6. Mr. W. acknowledged an anger problem and behaving badly towards Ms. A.-Y. He indicated a commitment to co-parenting and to supporting Ms. A.-Y. in parenting.
7. Su. who is nine was very clear in his interviews with the OCL assessor that he wished to live with his father and have more time with his father than his mother. His statements that his mother spanks him with a hard golden belt and stole all his money are very concerning and will require further investigation as to why he is making these statements. There is no evidence or allegations of any physical abuse by Ms. A-Y.
8. Su. made some other concerning statements to the OCL assessor. He indicated both parents hate each other and don’t talk to each other because they are not allowed. Daddy is good, Mommy is not. Mommy wants to figure out how to kill Daddy. Daddy does not like Mommy because she is hurting Daddy, so he just wants to go away. What is clear is there has been a significant negative impact on Su. due to the conflict between his parents, both of whom are making negative comments about the other in front of or to the child.
9. Both parents are attentive and capable of meeting the children’s physical needs and have made efforts to address Su.’s emotional and psychological needs. Mr. W. was observed to be more successful in dealing with Su. special needs and behaviour.
10. Both sets of grandparents have been involved with the children and are supportive.
11. There has been family violence in this case. The extent of that violence and whether Mr. W. is guilty of assaults on Ms. A.-Y. will be addressed at the criminal trial in April.
12. There are currently release conditions prohibiting contact or communication between the parents.

Conclusion

[59] Although I have considered the observations, interviews, and conclusions of the OCL assessor as additional probative evidence on this motion, I am not prepared to change the existing temporary order to simply incorporate all the interim recommendations of the assessor. The criminal trial will be in approximately two months hopefully with a judgment shortly thereafter. That judgment will necessarily have a significant impact on the parenting plan going forward.

[60] However, given the behaviour of Su. in his mother’s home, Su.’s strongly and consistently expressed wish to spend more time with his father, the observations of Mr. W. as an attentive, warm parent, the fact that the existing arrangement was anticipated to be temporary but has lasted for over a year with Mr. W. having only one overnight every 2 weeks, and the other considerations listed above, I find it in the children’s best interests to increase Mr. W’s parenting time pending the judgement of the criminal trial and a Settlement Conference in this court.

[61] Therefore, the temporary order of Mr. Justice Marc Smith, dated January 15, 2021, is replaced with the following:

1. Commencing immediately the children shall have parenting time with their father as follows: a) Mondays and Wednesdays with pick up from school/daycare (or 3:30 PM) until 6:30 PM. b) Every second Friday pick up from school/daycare (or 3:30 PM) until Sunday at 6:30 PM. c) Every second Saturday from 10 AM to 3:30 PM.
2. The paternal grandfather or other person as agreed upon between the parties shall transport the children to and from Ms. A.-Y.’s residence for Mr. W.’s parenting time unless the pickup or drop off is directly at the school, which can be done by Mr. W.
3. Mr. W.’s parenting time may be further extended as agreed between the parties from time to time.
4. Each parent may call or FaceTime Su. directly during their non parenting time on weekdays (Monday – Friday) for a maximum of 15 minutes. Se. may join the call. These calls are to be facilitated and encouraged by the parent having care of the children. Once the call has commenced that parent shall leave the room to ensure privacy. The timing of these calls is to be as agreed between the parties.
5. Until the criminal trial and judgment and/or a change in the existing release conditions, the parties shall communicate through the paternal grandfather or their counsel. Thereafter, Our Family Wizard is to be considered.
6. Both parties may communicate directly with the school/daycare and may make inquiries and be provided with information from teachers, daycare providers and school officials.
7. Neither party shall request any change to the services and supports Su. receives through the school and/or Crossroads.
8. Neither parent shall make negative comments about or denigrate the other or his/her family members or speak about the criminal or family court proceedings in the presence of the children.
9. A Settlement Conference date is to be set through Trial Coordination as soon as possible after the judgement in the criminal trial or by June 1, 2022 whichever is sooner. At that time a further referral to the OCL should be considered.

Costs

[62] If the parties are unable to resolve the issue of costs, submissions may be provided, a maximum of two pages not including offers to settle and bills of costs. Mr. W.’s submissions are due on March 4, 2022, Ms. A.Y.’s on March 18, 2022, with any reply by Mr. W. by March 25, 2022. Please submit them to my attention at scj.assistants@ontario.ca.

Released: February 18, 2022 Blishen J.