COURT FILE NO.: TS-14-0000012-0001 (Guelph)
DATE: 20230120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kristijan Urban
Elliott Braganza, for the Applicant
Applicant
– and –
Jennifer Hendry
Respondent
Michael Purves-Smith, for the Respondent
HEARD: January 17, 2023
ENDORSEMENT
Justice Van Melle
[1] There are two motions before me. The parties agree that the Office of the Children’s Lawyer should be requested to become involved in this matter. However, the respondent, Jennifer, moves for an order requesting the OCL to prepare a Voice of the Child report. The applicant, Kristijan (Kris), moves for an order requesting the OCL to conduct a s. 112 assessment.
[2] The motions arise in the context of Jennifer’s Motion to Change the Final Order of Justice Price dated February 9, 2015. The order was issued on consent and the parties agreed to have joint custody (now called joint decision making) of B. born December 16, 2008 and L. born August 22, 2012.
[3] Pursuant to the order neither party is to move the children more than 30 km outside of the City of Guelph. If one party relocates the children are to continue to attend school within the City of Guelph, with the relocating party to be responsible for transportation.
[4] In the Motion to Change, Jennifer seeks to be the sole decision maker with respect to the children and she and the children would reside in Ambler, Pennsylvania with Jennifer’s new partner Damian Rogers. Damian has a job in Philadelphia and has already moved to Ambler, Pennsylvania.
[5] Jennifer’s reason for resisting a section 112 report is her concern that it will cause this matter to be delayed. She also does not feel it necessary to embark upon a s. 112 assessment to determine the views and preferences of the children.
[6] Jennifer submits that a Voice of the Child report will put forward the views and preferences of the children and that they are old enough and mature enough to express their views and to have those views taken into account. She feels that as there are no clinical issues a s. 112 report is not required and indeed should not be ordered.
[7] Kris wants a s. 112 report because he believes that the requested change to the parenting arrangement and the relocation to the United States are issues requiring clinical investigation. He believes that the children’s views and preferences are heavily influenced by Jennifer and thus a s. 112 assessment would be far more beneficial to the court.
[8] I have made inquiries of the OCL and generally requests for a Voice of the Child report are accepted fairly quickly and completed within 30 days. A full s. 112 report usually takes more than 120 days because the CAS and police disclosure is often delayed. There have been instances where the OCL accepts a file and it is determined that a full report is required because of the issues raised by the child. There also have been instances where the intake forms outline issues that would be better suited to a s. 112 report. The OCL will also provide a focussed report that is usually completed within 60 days but the issues for examination by a clinician would have to be specified.
[9] Unfortunately, neither counsel considered contacting the OCL to obtain this information. The compromise position could well have been a focussed report. Completion within 60 days would not delay this matter inordinately. If the children are ultimately permitted to move to the United States, it would make sense that a move occur before the commencement of the school year in September.
[10] In this case, it is unlikely that if accepted a s. 112 report would take more than 120 days, as I am not aware of any CAS or police concerns here, thus the delay caused in obtaining those reports would not apply.
[11] In her affidavit sworn January 3, 2023, Jennifer says at paragraph 23:
I have never believed it is necessary or appropriate to subject the children to a s.112 investigation. However, I recognized the delay that would result if Mr. Urban and I could not agree to an appropriate means by which to get Brooklyn and Lincoln's views. On August 22, 2022, my lawyer, Michael D. Purves-Smith, wrote to Mr. Urban's lawyer, Elliott Braganza. In his letter, Mr. Purves-Smith states the following: Please advise if your client will consent to a 14b motion to request the involvement of the Office of the Children's Lawyer. My client is agreeable to either a Voice of the Child Report and / or a s. 112 request.
[12] On September 2, 2023 Mr. Purves-Smith wrote to Mr. Braganza asking for a response to his August 22 communication. On September 9 Mr. Braganza replied that he had no instructions to consent to the relief sought.
[13] Kris seeks a s. 112 assessment because he wants answers to the following judicial questions:
Should the Respondent have sole decision-making authority for the children?
Should the children reside primarily with the Respondent mother in her proposed location in the United States of America, and should the children have parenting time with the Applicant father according to the children's wishes?
Should the children have holiday parenting time with both parents according to their wishes?
Should paragraphs 1 g) (daily telephone access) and m) (restriction on moves outside of the City of Guelph) of the Order of the Honourable Justice Price, dated February 9, 2015 be deleted?
[14] There is no question that when considering parenting issues, the courts are to take into account a child’s views and preferences to the extent that a child is able to express them.
[15] However, the questions that Kris seeks answers to cannot be answered by way of a s. 112 assessment. Those are questions that are strictly the purview of the court.
[16] Kris relies on Scott v. Sawchuk, 2021 ONSC 5903, for the proposition that a s. 112 assessment should be ordered in mobility cases. However, in that case the children were acting out and showing great distress and did not want to return to their mother. In the case at bar, while there are allegations by both parties as to the children’s views and preferences, there is nothing to rises to the level of distress evident in the Scott case.
[17] It is important to recognize that while a court will consider the child’s views and preferences, in a case such as this, it will only be one consideration among many. It will not be for the OCL or anyone other than a judge to make the final determination as to whether or not the move would be in the children’s best interests.
[18] Kris refers to Cosentino v. Cosentino, 2016 ONSC 5621,and quotes Justice Pazaratz who wrote that a s. 112 assessment could be available in 2 months. While I doubt that was the case in 2016 it is certainly no longer the case today. If the mandate is accepted by the OCL a s. 112 assessment will take a minimum of 120 days.
[19] Kris submits that Jennifer’s motivations for the move are relevant and would be canvassed and assessed by a section 112 clinician. These motivations would not be captured in a Voice of the Child Report. This statement misconstrues the role of the OCL. Again, it is the judge who must make this decision, not a clinician.
[20] Kris cites the case of A.C.V.P. v. A.M.P. 2022 ONCA 283 as standing for the proposition that there is no longer a requirement for a clinical issue to be present for the court to order a s. 112 assessment.
[21] At paragraph 30, Coroza, J.A. said:
I do not accept the mother’s submission that the trial judge erred because such reports should only be reserved for clinical issues. The trial judge determined at the outset of his reasons that there were clinical issues identified at trial that had, and may continue to have, a direct impact on the children. In any event, the weight of the jurisprudence suggests that there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA; rather, the inquiry is fact-driven and flexible: see e.g., Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435, at para. 48; A.A. v. D.S., 2022 ONSC 1389, at paras. 30-45. See also Kramer v. Kramer (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont. S.C.); Parniak v. Carter (2002), 2002 CanLII 45671 (ON CJ), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 2000 CanLII 20393 (ON SC), 10 R.F.L. (5th) 276 (Ont. S.C.).
[22] While there may be no hard and fast rules that a clinical issue is required to trigger the request for a s. 112 assessment, the cases demonstrate that there is still discretion. As Coroza, J.A. points out the inquiry is fact driven and flexible.
[23] I am satisfied that the information that Kris believes would be gathered for a s. 112 assessment, is information that can (and should) be put before the court by the parties and their witnesses at trial.
[24] I am satisfied that a Voice of the Child report is the appropriate avenue. The children are 14 and 10 years of age. They are able to express their views. They should be given the opportunity to do so. If the OCL feels that an investigation is warranted it will make that decision. As the goal of the report is to put the views and preferences of the children before the court, a Voice of the Child will fulfill that goal. An order will issue requesting the OCL’s involvement and requesting a Voice of the Child Report. The order will issue in terms of the respondent’s draft order except that the order will have to be amended to set out the legislation pursuant to which the order is granted.
[25] Both parties uploaded their cost submissions to CaseLines. Jennifer was successful on this motion and is presumptively entitled to costs. Kris claims costs of $7,350.65. Jennifer claims costs of $3,991.50. Jennifer made a very reasonable proposal in August. She was prepared to move forward with a request to the OCL for a s. 112 assessment. Had her proposal been accepted there would have been no need for this motion. I award her costs of $3,991.50 payable within 30 days.
[26] Before completing this endorsement, I make mention of the failure of counsel to comply with the Provincial and Regional Notices to the Profession. With attachments, the applicant’s affidavit on this motion totalled 67 pages. The narrative portion of the affidavit was single spaced. There was no index and no hyperlinks. The factums were not double spaced. I caution counsel that they must comply with the relevant Notices or they risk having costs awarded against them or judges simply refusing to review their materials in advance.
Van Melle J.
Released: January 20, 2023
COURT FILE NO.: TS-14-0000012-0001 (Guelph)
DATE: 20230120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kristijan Urban
Applicant
– and –
Jennifer Hendry
Respondent
ENDORSEMENT
Van Melle J.
Released: January 20, 2023