Court File and Parties

Court File No.: FS-18-41158 Date: 2022 04 19 Superior Court of Justice - Ontario

Re: P.L.M., Applicant And: N.A.M., Respondent

Before: Conlan J.

Counsel: Mr. J. Rechtshaffen, for the Applicant, P.L.M. Ms. C. van der Burg, for the Respondent, N.A.M.

Heard: April 13, 2022

Endorsement on Motions

I. The Trial is on the Horizon

[1] This case is set to be tried in Halton in October 2022. Nonetheless, each party brings a motion.

[2] Of course, there are good reasons why judges are generally reluctant to make substantive orders in family law matters when the trial is mere months away. An order made on a motion is never on as solid ground as one made after a trial. That is especially so when, as here, no out-of-court examinations have been conducted on any of the affidavit materials that have been filed by either side. In addition, a substantive parenting order made shortly before trial runs the risk of confusing the child(ren) if it is reversed or significantly varied by the trial judge. Further, such an order made not long before the start of the trial has the potential to upset the status quo in a way that unfairly gives one side an advantage, an upper-hand, going into the actual arena. Hence, it is not often that a judge will determine that a substantive parenting order made after the matter is set down for trial and mere months away from the start of the trial is indeed in the best interests of the child.

II. The Parties and the Motions

[3] The Applicant mother, P.L.M., moves for an order that the two children, A. (male – 11 years old) and L. (female – 7 years of age), undergo an assessment, psychological/developmental in nature, at the London Family Court Clinic. The parties would share evenly the cost of the same. The Respondent father, N.A.M., says no such assessment should be ordered.

[4] The father moves for an order that he have expanded parenting time with the children, different than what has been in place for nearly four years now, under the consent Order of Coats J. made on May 31, 2018, and other relief restricting any change in the children’s primary residence or school without Court approval or the consent of both parties. The mother objects on all counts.

III. The Main Arguments by Each Side

[5] I am grateful for the assistance of counsel. The affidavit materials and facta filed were well done, and the oral submissions were responsive to the issues and to this Court’s questions.

[6] The mother submits that (i) the assessment being sought was already recommended by the section 30 custody and access assessor, Ms. Geraldo, long ago, at least with regard to A., and (ii) the assessment is further supported by psychologist Dr. Saunders (who has seen the mother but not the children, and who is currently involved with the mother), and (iii) the very concerning behaviours of both children necessitate the assessment.

[7] The father disagrees, and he argues that (i) the mother’s request for the London Family Court Clinic assessment is essentially a way to go behind and avoid having to comply with the Order of Miller J. made on February 8, 2021, wherein Her Honour refused the mother’s request for an updated section 30 assessment and ordered that reintegration/reunification therapy shall proceed, which therapy has never occurred, and (ii) he submits further that what the mother really wants is to have a third party support her allegations against the father, and (iii) in addition, this Court has insufficient information from the London Family Court Clinic to make the order being sought, and finally (iv) these alleged disturbing behaviours by the children have not been observed by anyone else except the mother and, thus, the assessment is unnecessary.

[8] On his own motion, the father submits that (i) increased parenting time with the children, including overnights with A., is supported by the children and was supported by A. even way back when Ms. Geraldo conducted her section 30 assessment, and (ii) the father need not demonstrate any material change in circumstances because the Coats J. Order was a temporary, without prejudice one, relying in part on the decision in Kirichenko v. Kirichenko, 2021 ONSC 2833, at paragraphs 27-28. It should be noted that counsel for the father spent most of her time in submissions, in fact 75-80 of the 90 minutes allotted, on the mother’s motion. Very little was said about the father’s request for an order precluding any change in the children’s residence without Court approval or consent, except that any such change would be inconsistent with increased parenting time for the father if indeed this Court ordered that, and nothing was said about the father’s request for an order precluding a change in the children’s school unless there is Court approval or consent except that the father would like the current school to continue, and nothing at all was said about electronic contact between the father and the children, and very little was submitted about extra parenting time in general other than that if the request is denied it would prejudice the father at trial.

[9] The mother disagrees, arguing that (i) there has been no material change in circumstances since the date of the Coats J. Order, and (ii) besides, the test for a variance has not been met, Thomas v. Wohleber, 2022 ONSC 1258, at paragraph 45, and (iii) in addition, the expanded parenting time is not in the best interests of the children because of the father’s anger problems, and (iv) the trial is fast approaching in any event, and (v) finally, not much weight should be attributed to the failure of the reintegration therapy given the mother’s terrible experience with the prior therapist, Andrea Barclay.

IV. Analysis

[10] This Court’s paramount concern is the best interests of the two children. Neither motion should be granted unless this Court is satisfied, on balance, that the said relief is in the children’s best interests.

[11] I am not satisfied of that, and my dissatisfaction applies to both motions. Consequently, both motions are dismissed.

[12] It is time for the parties to focus on the upcoming trial. Normally, I would order no costs given the result, however, if either counsel wishes to speak to costs, s/he can arrange for a very brief Zoom conference through the trial office in Halton. Of course, both counsel would have to be in attendance for that.

[13] I cannot accede to the mother’s request for an assessment of the two children at the London Family Court Clinic, not because this Court thinks that the mother has some ulterior motive in suggesting the assessment, that is to collect ammunition to support her allegations against the father, as argued by Ms. van der Burg, and not because these behaviours of the children complained of by the mother have not been observed by the father or by other collaterals, as submitted by Ms. van der Burg, but because of the two other arguments put forward by counsel for the father, both of which I agree with.

[14] First and foremost, the assessment being sought is an indirect way to skirt the prior Order of Justice Miller made on February 8, 2021. My colleague was clear that, in the best interests of the children, family reintegration therapy must take place before a further section 30 assessment (paragraphs 57 and 58 of the Endorsement dated February 28, 2021). At the time that Her Honour made the said Order, the Court was well aware of the behaviours of the children that the mother was, and still is, very concerned about – see, for example, paragraphs 36 through 38 of the Endorsement dated February 28, 2021. It is equally clear that Justice Miller attributed the failure of the family reunification therapy to the actions of the mother – paragraph 45 of the Costs Endorsement dated October 1, 2021.

[15] In those circumstances, I agree with Ms. van der Burg that it would be patently unfair to the father, but more important contrary to the best interests of the children who have now been deprived of that important and Court-ordered family reunification therapy through no fault of theirs, for this Court to now order an assessment of the children at the London Family Court Clinic.

[16] That the assessment being sought now is not the same as what was being sought by the mother in front of Justice Miller does not change this Court’s view. It was determined that the best interests of the children required family reintegration therapy to take place. It did not. It did not because of the mother’s actions. The mother cannot come to Court now and ask for a different type of assessment and expect this Court to ignore the history.

[17] Second, and less important, I agree with Ms. van der Burg that there is insufficient information in the materials filed to know if this proposed assessment might derail the timing of the trial, and if so that would certainly not be in the best interests of the children. The document at CaseLines Master Page A65, Exhibit “R” to the affidavit of the mother sworn on March 18, 2022, which is an email from the case coordinator at the London Family Court Clinic, indicates that the matter would have to first be placed on a waitlist, and the assessment process can take two to three months, and then there would be a few weeks more until the report is ready. This Court has no assurance, directly from the Clinic, that the assessment would be done in time for the trial. That is concerning.

[18] For those two reasons, the mother’s motion must be dismissed.

[19] Regarding the father’s motion, whether the father has to show a material change in circumstances or not, which is a point that this Court need not decide, I agree with Mr. Rechtshaffen that it would not be in the best interests of the children to grant any of the relief sought by the father.

[20] This is not the time for experimenting (my word) with expanded parenting time between the father and the children. The evidence is not at all clear that the children want more time with their father, as alleged by counsel for the father. The mother’s evidence is directly contrary to that assertion, including on the key question of whether A. wants to spend overnights with his father – see paragraphs 18 and 19 of the mother’s affidavit sworn on March 28, 2022. I am not prepared to try to resolve that conflict in the evidence now, months away from the start of the trial, on untested affidavit evidence, and without hearing from the children, especially A., or anyone on their behalf.

[21] I appreciate the submission by counsel for the father that a dismissal of the father’s motion will mean that the trial judge will have no evidence about how the overnights have gone, for example. So be it; the interests of the father in terms of his litigation position at trial must be secondary to the best interests of the children. Besides, judges in family law cases make orders all the time after trial that do not have historical experience that underpins them. In fact, there are instances where judges completely reverse decision-making authority and the primary residence of a child after trial. There is simply no merit to the argument that the father requires that his motion be granted in order to have a fair chance at trial.

[22] The trial is on the horizon. The status quo should prevail until then; that, in my respectful opinion, is in the best interests of the children.

[23] It is a shame that the family reunification therapy did not take root. It is not too late for that to occur, but I say that in obiter.

V. Order

[24] Both motions are dismissed. No costs, subject to hearing from counsel.

Conlan J. Date: April 19, 2022