Court File and Parties

COURT FILE NO.: FS-21-00027194-0000

DATE: 20230502

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hayley Meredith Rosen, Applicant

AND:

Lee Brett Rosen, Respondent

BEFORE: L. Brownstone J.

COUNSEL: Raymond A. Goddard, for the Applicant

Michael H. Tweyman, Respondent

HEARD: April 27, 2023

ENDORSEMENT

[1] The applicant mother asks the court to appoint an assessor under s. 30 of the Children’s Law Reform Act to assess and report on the needs of the children.

Brief Background

[2] The parties were married on April 15, 2011, separated on May 4, 2019, and divorced on January 11, 2021. There are two children of the marriage, M who is 8 years old and I who is 6.

[3] The parties’ parenting time currently operates under the terms of their 2019 separation agreement. The children primarily reside with the mother and spend regular time with the father. There have been times in the past when the father’s in-person parenting time has been suspended. In her application, the mother seeks to change the terms of the separation agreement. She seeks, among other things, sole decision-making for the children.

Position of the parties

[4] The mother states that the father lacks accountability and awareness of the impact of his behaviour on the children. She claims that his aggressive behaviours are escalating and the children are suffering. She also cites inappropriate communications from the father to her, and to others, as reasons that an objective independent assessment should be obtained. The father opposes the order sought. He takes the position that an intrusive, expensive s. 30 assessment is unnecessary and is sought by the mother for the purposes of exerting control and micromanaging his relationship with the children. He denies that there are difficulties between him and the mother (at least not to the extent she claims they exist), or between him and either of the children. He is concerned about the cost (which the mother is willing to share equally) and the delay that will be occasioned by an assessment.

Governing legislation and principles

[5] Section 30(1) of the Act provides as follows:

30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

[6] An assessment under s. 30 is not to be ordered routinely. If the court is in a position to reasonably decide the issue without the assessment it should not be ordered. The assessment must be reasonably necessary to assist the court in determining the issues before it (Kramer v. Kramer, (2003) RFL (5^th) 381; 2003 CanLII 64318 (ON SC), [2003] CarswellOnt 1228 at para. 36, 41). A “clinical issue” is not required before an assessment order is made (Glick v. Cale, 2013 ONSC 893 at paras. 40-46). The court also must consider whether the intrusive and time-consuming nature of an assessment would outweigh its benefits (Kramer at para. 51)

[7] The burden is on the party seeking the assessment to demonstrate that it is reasonably necessary.

[8] In Glick, Kiteley J. outlined a non-exhaustive list of criteria to consider in determining whether an assessment is reasonably necessary, as follows:

a. What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b. Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

c. Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d. Do the parents have a mutual disregard for the other parent’s ability to parent?

e. Do the parents blame each other for the dysfunction each describes?

f. Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g. Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h. What is the age of the child at separation and at the time of the request for the assessment?

i. Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j. Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

k. Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l. What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

m. What is the estimated cost? Do the parents have the financial resources to pay that cost?

n. Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

o. Is an assessment in the best interests of the child?

Analysis and Conclusion

[9] The parties agreed to parenting time and decision-making in a separation agreement in 2019. The mother has brought an application seeking to make changes to that agreement. She has been finding it difficult to manage the parenting with the father in the last few years and claims the father’s behaviour has become increasingly hostile and difficult to manage.

[10] The father acknowledges that he has sent inappropriate communications both to the mother and to third parties. The mother relies on recent communications to support her argument that the father is “spiraling”, which she states started in the summer of 2021 and is getting worse. The father acknowledges that in January of 2023 he sent an “odious” email to an Ontario physician who is the mother’s brother-in-law, accusing him, among other things, of being a mass murderer and a criminal. The mother clearly finds the father’s political views objectionable, and his manner aggressive. She acknowledges this is not a classic “clinical issues” case but argues that an assessment is needed to assist the court in evaluating the father’s capacity to meet the children’s needs.

[11] The father has engaged in communications to third parties that are vitriolic. His communications to the mother during COVID, attached to her affidavit, were beyond inappropriate. Indeed, his parenting time was temporarily suspended from December 20, 2021 to January 11, 2022 and then gradually increased to the time set out in the separation agreement.

[12] I have no doubt that the relationship between the parties is difficult and that each is concerned about how this may be affecting the children. The parties have different personalities and parenting styles. Each party believes that the other is exposing the children to their dispute, questioning the children in inappropriate ways and putting ideas into their heads.

[13] As noted above, the question for the court is whether an assessment by a professional is reasonably necessary to assist it in resolving these issues. In considering the relevant criteria, I note the following:

a. The parents have been able to make major decisions about the children without court intervention. While the parties did not agree on decisions regarding COVID precautions and vaccination, there is no evidence that other major decisions are problematic (education, religion).

b. While the mother put forward three names of potential assessors, none of them has been contacted to provide their consent, their CVs, or an estimate of the time the assessment would take or its cost. Although she refers at times to a focused assessment, there is nothing in her materials to narrow or focus the task of the assessor. Essentially, she seeks an order to appoint an assessor, whose identity, scope and fees will be determined at a later date. The cost and scope of the proposed assessments are undefined and therefore unknown.

c. The father, in particular, has expressed some concerns about M. However, there is no evidence of any concerns expressed by any independent party. In particular, there are no issues at school, where he appears to be thriving. An email from his school indicates no concerns and states that he is a pleasure to teach, comes to school happy to learn and participates in lessons and activities.

d. A settlement conference, scheduled for August, would be delayed if an assessment is undertaken.

e. The parties have some difficult communications, and some respectful communications, as is often the situation in family law cases. The parties are aware of the hostility between them and the potential effects on the children. The father has indicated a willingness to engage in more respectful communications and has expressed remorse for previous communications. The mother questions the sincerity of those statements, particularly given that the email to her brother-in-law physician post-dated them. It is evident that the parties are aware of and able to articulate what they must do to ensure the best interests of the children are protected and promoted (engage in respectful communications, not put the children in the middle of their conflict, communicate with each other about important issues that arise about the children while in their care, and put the children’s interests above their own).

[14] Therefore, with respect to the over-arching question, I find the moving party has not demonstrated to the court that an assessment is reasonably necessary. The issues in this case are not of a nature that expert evidence is required to assist the court. The evidence does not demonstrate that an intrusive s. 30 assessment is in the children’s best interests.

[15] I find that the words of Horkins J. in Hauber v. Sussman, 2019 ONSC 6369 are apposite:

The factual context of this dispute reveals the type of conflict that is typical in a custody, access and parenting dispute. Courts frequently decide these types of cases without a s. 30 assessment. In a case like this where the court can reasonably decide the issues without an assessment, the assessment should not be ordered (Baillie v. Baillie, 2012 ONSC 3728 at para. 38).

[16] The motion is therefore dismissed.

[17] The parties are encouraged to agree upon costs. If they are unable to agree, the respondent may make costs submissions of no more than 5 double-spaced pages, plus any offers to settle and bill of costs, by May 12, 2023. Applicant may respond, with the same page limits, by May 23, 2023. There will be no reply submissions without leave. Submissions may be sent to my judicial assistant at Linda.Bunoza@ontario.ca

L. Brownstone J.

Date: May 2, 2023