COURT FILE NO.: FS-22-00031558-0000
DATE: 20231218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RUTH NANCY CIBUKU
Applicant
– and –
ALDI CIBUKU
Respondent
Mark DeGroot, for the Applicant
Elizabeth Moura, for the Respondent
HEARD MAY 2, 2023; Written Submissions received August 18 and 24, 2023
VELLA J.
REASONS: MOTION FOR A PARENTING SCHEDULE AND CROSS MOTION FOR A SECTION 30 ASSESSMENT
[1] The Respondent Father seeks equal parenting time with the two children, aged 8 and 9 years old (“AC” and “NC”), respectively, on the basis of a 2/2/5/5 schedule and that this is in the best interests of these children.
[2] The Applicant Mother objects and seeks an assessment under s. 30 of the Children’s Law Reform Act, RSO 1990 c. C. 12 (CLRA).
[3] I made a partial ruling regarding holiday time that was time sensitive.
[4] While this matter was scheduled as a short motion, it ended up taking 2 full hours. This was required in order to deal with the motion and cross motion as they raised distinct issues.
Events since the Hearing of the Motion
[5] By supplementary endorsement, I invited submissions on the issue of whether the Children’s Aid Society of Toronto’s (CAST) file should be before the court in light of the fact that there was no information before the court, other than through the parties, about the views and preferences of the children. At the time of the hearing, while both parties referenced the CAST involvement, the records were not yet available, though they had been requested. Both parties agreed that the CAST file should be before me for purposes of this motion.
[6] I have received and reviewed the respective submissions of counsel regarding the contents of the CAST file and the redacted CAST file itself.
[7] In the interim, Justice Kristjanson released a decision regarding the school placement of the children. I was provided with the reasons by counsel for the Father and have reviewed it. I was also advised by counsel for the Father that he was acquitted of the criminal charges relating to an alleged incident of interpersonal violence made by the Mother. I have reviewed additional written submissions from both parties in reference to the acquittal and will address this and Kristjanson J.’s decision later in my Reasons.
A Section 30 Assessment is in the Best Interests of the Child
[8] Section 30(1) of the CLRA provides that the court “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”.
[9] Furthermore, the court will choose and appoint the assessor in the absence of agreement by the parties (s. 30(3), CLRA).
[10] The proposed assessor must first consent to make the appointment and agree to make a report within the period of time specified by court order (s.30(4)).
[11] The persons, including the parties and child, must attend for the assessment as provided by court order (s. 30(5), CLRA).
[12] The resulting assessment report will then be admissible as evidence in the proceeding (s. 30(9), CLRA).
[13] The court has considerable discretion in ordering and apportioning the assessor’s fees as between the parties and may relieve one party from paying any portion if it will cause serious undue hardship (s. 30(12) – (14), CLRA).
[14] In the oft-cited case of Glick v Cale, 2013 ONSC 893, 48 RFL (7th) 435, at para. 48, Kiteley J. provided a non-exhaustive list of questions to inform this analysis. Both parties used these factors as a roadmap for their respective submissions. In that decision, at para. 21, Kiteley J., quoting the Divisional Court decision rendered in Linton v. Clarke, 21 OR (3d) 568, 1994 CanLII 8894 (ON SCDC), and Baillie v. Baillie, 2012 ONSC 3728, noted that s. 30 assessments are not to be made as a matter of routine for resolving parenting disputes but rather should be restricted to situations in which assessments can provide expert evidence to address “the emotional and psychological stress within the family unit in the final determination of custody”.
[15] As most recently noted by the Court of Appeal in A.C.V.P. v A.M.P., 2022 ONCA 283 at para. 30, “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”.
[16] In L.T.C. v D.P., 2021 ONSC 7806, at para. 12, the court ordered a s. 30 assessment in view of the significant behavioural issues of the child and the fact that the parents accused each other of behaving inappropriately with the child. In that case the court required a clinical assessment to determine what parenting arrangements are in the child’s best interests “as well as the manner of implementing them in the least disruptive fashion given his diagnosis”.
[17] In this case, it is clear to me that the eldest daughter, NC, has some clinical emotional and/or psychological issues that have been causing her distress and difficulty in day-to-day functioning. These have arisen in the wake of the separation. She is currently in therapy, though I have no evidence from her treating therapist.
[18] She was noted by her former school, Branksome Hall, to have difficulty regulating her emotions such that she was suspended for a “day of reflection” after a physical altercation that she initiated. She hit another student over the head with a shovel. This difficulty in regulating emotions was noted by the school to be a pattern and appeared to follow her time with the Father. Some concern was noted that NC and AC had been late for school an inordinate number of times (AC was late on 60 days, and NC was late on 49 days) which, as found by Kristjanson J.[^1], was the responsibility of the Mother who was (and is) in charge of dropping off the children at school. The evidence suggests that disruption to NC’s school life and behaviour may have to do with her being tired from having been at the Father’s home the prior afternoon leading to an evening drop off and then school the next day. The Father also suggests that the children have been “overprogrammed” meaning that the Mother has enrolled them in too many extracurricular activities.
[19] The Mother, in turn, accuses the Father of using demeaning language towards the children such as “dumb” and “fat”, hitting NC for not eating her food, speaking ill of the Mother to the children, and telling them it was the Mother ‘s fault that he was arrested. She also alleges that the Father hit her in front of the children and there are documented reports from the children in the CAST records that they saw this and were upset by it.
[20] Kristjanson J., who had the benefit of the CAST records and a clinical note from NC’s therapy records of June 2023, also found, in Cibuku at para. 32, that the disruption caused to the children of being late for school so frequently was “unfair to the children, and not in their best interests”.
[21] Having reviewed the CAST records, I acknowledge the Father’s submission that the CAST has never found that the children were in need of protection and has closed its file following various investigations. However, this does not mean that there were no concerns supported by the observations and reports documented by the CAST that warrant a clinical assessment under s. 30 of the CLRA.
[22] Of note, the CAST documented third-party reports (names redacted) of verbal outbursts and anger from the Father, and in one case, a physical incident - all directed at NC - that appear from the context to have been provided by the Father’s former housekeeper (before the separation she was the family’s housekeeper, and now she is the Mother’s housekeeper), a professional from Branksome Hall, and another parent from Branksome Hall. Also documented are reports that the Father made disparaging remarks about the Mother, especially following the criminal charges arising from the Mother’s allegation of assault.
[23] Importantly, the CAST records document acknowledgments by the Father that some of his actions as related to the children subsequent to his leaving the matrimonial home, were not, with the benefit of reflection, in the best interests of the children. For example, in the CAST record dated June 3, 2022, the Father reportedly acknowledged that telling the children that the Mother “got him arrested” and then showing “them a video that he took of him getting arrested and being taken in a police car” was “perhaps” not a good idea.
[24] There are also documented reports of NC advising the CAST worker that she likes “nothing” about the Father, witnessed a physical altercation between her Father and Mother, the Father had broken the phones he had bought her and AC because he got angry at them for being slow at getting dressed, and that sometimes the Father will “hit her on her bum”. It is also documented that NC advised that her Father called her “dumb”. The CAST records also documented that AC advised that she felt scared and went to the washroom and cried after her Father showed the video of his arrest.
[25] In the CAST record dated January 20, 2023, while closing the file, the CAST worker documented that a risk of physical harm towards NC was recorded as verified in consideration of both children’s disclosures to two people (names redacted) and the Mother’s report from “a housekeeper”.
[26] The housekeeper, Marisol Gaona, swore an affidavit dated April 21, 2023 in which she deposes that her housekeeping schedule at the Father’s house overlapped with the parenting schedule (Tuesday and Thursdays from after school to 8:00 p.m., and alternating weekends). She deposed that she witnessed the Father slapping NC and pulling her hair that caused pain. She also deposed that the Father threatened to fire her by text if she did not bring the children from the Mother’s house to his (as it was his parenting time).
[27] The Father strenuously submits that I should attach no probative value to this affidavit because he alleges that Ms. Gaona is patently biased as she was fired by him, ostensibly for legitimate reasons, and now works for the Mother.
[28] While I found that Ms. Gaona’s allegations were exaggerated (“There was not one time I was in his home, that I can remember, during which I did not see [the Father] pull [NC’s] hair in a way that caused her pain.”), I am not prepared to entirely discount her evidence where there is support from other sources and notably the CAST records. However, a trial judge will be better able to assess Ms. Gaona’s evidence, should she be called as a witness. Notably, there was no cross-examination of Ms. Gaona, likely caused by time constraints leading up to this motion.
[29] Importantly, the CAST records document on January 18, 2023, based on a verbal report from Branksome Hall’s social worker that NC is having difficulty regulating her emotions in the wake of the separation of her parents and reportedly engaged in physically aggressive behaviour with another student while being overly protective of her younger sister. The record documented the social worker’s concerns that the Father “didn’t seem to get it in terms of the impact of everything happening at school and need to seriously address”.
[30] The Father also submits that he has been exonerated by his acquittal by the criminal court of the interpersonal violence allegations, and that therefore this is a non-issue. However, the acquittal does not equate into a finding of innocence. It only means that the Crown failed to prove the allegations beyond a reasonable doubt. These allegations have not been tested on a balance of probabilities, which is the standard of proof in family law proceedings. That said, and of significance to the requested parenting order, there is no longer a no-contact order in place that previously complicated the pick ups and drop offs of the children.
[31] Turning to the factors in Glick,
(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?
I find on the evidence that prior to the separation the parents functioned at least adequately, and that the serious dysfunction arose only after separation. Contrary to the Father’s submission, the parties’ ability to parent post-separation is not “absolutely adequate”. While some of the text messages adduced show that the parents did communicate sometimes in a civil and productive manner, other text messages show the opposite. For example, in a text message dated March 3, 2022 concerning the forthcoming March break, the Father writes, in revoking his prior consent to the Mother having the children, “After consideration, I don’t believe is in the best interest of the girls to spend all two weeks of March break with you. [N’s] troubles at school come as a direct coaching on your part and this controlling behaviour needs to stop. Very simply we will have them for one week each. I am expecting that you won’t agree that is why I am requesting an emergency court day next week to resolve this in the best interest of the girls…”
(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?
The parents have demonstrated that they cannot consistently make decisions about the children’s needs without intervention by the court. Aside from the above incident, the parents also could not agree as to what school NC should attend this year as per the decision of Kristjanson J. referenced above in Cibuku. Furthermore, the parents clearly do not agree as to what, or how many, extra-curricular activities the children should be enrolled in.
(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?
Despite the Father’s view, I find that the relationship between the parents has become so unhealthy that the Father is unable to identify the best interests of the children and act on them. For example, after the housekeeper wrote an affidavit in support of the Mother, the Father specifically attempted to poison the children against this person in a derogatory text message to NC, notwithstanding the fact that the housekeeper has been in the children’s lives since before separation, and continues to have an important bond with them.
(d) Do the parents have a mutual disregard for the other parent’s ability to parent?
It is clear that Father does not have a due regard for the Mother’s ability to parent. This is shown, for example, in his contention that she “over programmes” the children and manifested in his resistance to taking the children to their activities during his parenting time. It is equally clear that the Mother accuses the Father of engaging in behaviours (such as yelling, using demeaning language, denigrating the Mother in front of the children) that negatively impacts the ability to parent the children.
(e) Do the parents blame each other for the dysfunction each describes?
Both parents agree that they blame each other for dysfunction though the Father describes the dysfunction as being only the overprogramming which he states is not in the best interests of the children.
(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?
I do not have evidence of a clinical “diagnosis”. No such expert opinion evidence was presented. However, the evidence I do have, including the fact that NC is seeing a therapist for anxiety and anger issues, and the CAST records that report that the Father supports NC seeing a therapist and earlier a school social worker, as well as the potential links revealed in the CAST records and evidence that NC’s behaviour may be associated with the parenting capacity of one or both parents, is sufficient to warrant a s. 30 assessment, in combination with the other factors.
(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?
Again, no clinical diagnosis has been adduced in the evidence. However, there is ample evidence that the children, and particularly NC, have presented in a fragile manner and are vulnerable to the ongoing conflict between the parents. It is acknowledged by both parents that she has special needs.
(h) What is the age of the child at separation and at the time of the request for the assessment?
The children were 6 and 8 years old at separation and are approximately one year older as at the date of the hearing.
(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?
Both parties acknowledge that the children, and particularly NC, are manifesting stress. NC has also displayed disturbing anti-social behaviours at Branksome Hall. Notably prior to the date of separation, NC was doing well in school and displayed no such pattern of disturbing behaviours.
(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 Office of the Children’s Lawyer (OCL) to become involved and appoint a lawyer to act for the child?
There is no viable alternative, given the young ages of the children. The Father indicated that he is amenable to the OCL becoming involved at a later stage.
(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?
One challenge that was identified was the choice of school for the children given the repeated lateness of the children for school and the associated disruption to them in terms of school performance and behaviour (particularly NC). This issue was resolved on a temporary basis by Justice Kristjanson. Another challenge identified is the sale of the matrimonial home. The Mother states that the sale will further exacerbate the situation for the children. No other such challenges have been identified that may improve the family dynamic.
(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?
As stated this is a parenting case. The Mother has provided credible evidence warranting an appointment of a s. 30 assessor to conduct an assessment and report to the court.
(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?
Based on the financial disclosure and the fact that the Father no longer has to pay private school tuition for either of the children, I find that the Father has resources to pay the upfront cost of this assessment, and it would be a financial hardship for the Mother to assume any portion at this time. However, this finding is without prejudice to the trial judge’s ability to apportion the cost of this assessment.
(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?
Given my finding that there is an emotional and/or psychological issue that is impacting NC and seems to be associated with the dynamics between and/or with the parent’s post-separation, and the relatively early stage in this litigation (a settlement conference has not yet been scheduled as at the date of the motion and subsequent submissions), there will not be a delay that is at odds with the best interest of the child.
(o) Is an assessment in the best interests of the child?
Given the allegations of aggression and/or physical abuse against, and/or degrading and derogatory comments made to, the children, the trial judge will benefit from having a professional independent expert opinion on the needs of the children and the parents’ ability and willingness to satisfy those needs, in ultimately determining a parenting plan and schedule, it is in the best interests of these children that a s. 30 assessment be made.
[32] I am taking a holistic approach to this analysis. Having considered the non-exhaustive factors set out in Glick, I am satisfied that on the facts of this case, the court requires a s. 30 assessment on the needs of the children and the ability and willingness of the parties, or any of them, to satisfy the needs of the children, and that the Father has adequate financial resources to afford one (Ahmed v. Shaikh, 2021 ONSC 6648, at para.29). I am also satisfied that the parties themselves will benefit from receiving a s. 30 assessment report. Therefore, I am ordering a section 30 assessment - particularly focused on NC - as being in the best interests of these children.
[33] Only the Mother has proposed an assessor: Mr. Howard Hurwitz. The Father has not specifically objected to Mr. Hurwitz but rather objects to the assessment in its entirety.
[34] Mr. Hurwitz has the requisite experience and expertise for conducting s. 30 assessments. He has consented to act, and the parties have secured a spot on his waitlist on a without prejudice basis. Last April, he indicated he could commence this assessment in mid-June. I will require an update as to his availability and the date he will provide the report by, before finalizing the resulting Order.
[35] In terms of the financial arrangements, I am satisfied that the Father has the financial ability to pay for Mr. Hurwitz’s services up front. The Father estimated that he was spending approximately $7,000 a month for the children’s tuition at Branksome Hall and expenses. The lion’s share of the expenses were for the tuition. He no longer has any private school expenses. He does not dispute that he earns a substantial income and that he pays, for example, $12,000 per month on a rental. Furthermore, the matrimonial home has not been sold. Accordingly, he will pay the s. 30 assessment fees and the appropriate allocation of that expense can be determined on the equalization of net family property when that takes place.
Father’s Motion for a Parenting Schedule
[36] The Father seeks a shared parenting schedule on the basis of a 2-2-5-5 schedule and submits that this is in the best interests of the children. The Mother resists and states that shared parenting would not be in their best interests. The current schedule sees the Father having the children on alternating weekends, and Tuesdays and Thursdays from after school to 8:00 p.m. In one of her affidavits filed on these motions, the Mother proposes an alteration to the current schedule by replacing the two four-hour weekday visits with an overnight on every Tuesday.
[37] The factors in making a parenting order in this matter are set out in the Divorce Act, RSC, 1985 c.3 (2nd Supp), at s. 16.
[38] In making a parenting decision, the only consideration is the best interests of the child (s. 16(1), Divorce Act,). The court will give primary consideration to the child’s physical, emotional and psychological safety, security and well-being (s.16(2), Divorce Act). Section 16(3) of the Act sets out factors that inform the best interests of the child analysis.
[39] The status quo is not the default position in determining what is in the best interests of the child. Such an approach has the potential effect of enforcing the tender years doctrine which is a doctrine that has been long since rejected (Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3; see also Pereira v Ramos, 2021 ONSC 1737 at paras 35,38, 39, 58).
[40] By the same token, as stated by the Supreme Court of Canada in Barandregt v. Grebliunas, 2022 SCC 22 at para 135, there is “no presumption in favour of shared parenting arrangements, equal parenting time, or regular access” as the sole focus of the court is the best interests of the child in the specific factual context before it.
[41] In light of my determination that a s. 30 assessment is warranted, I am rejecting the Father’s proposal but with leave for him to renew his proposal once the s. 30 assessment report is released.
[42] In my view, the Mother’s compromise makes the most sense, and is also in line with the Father’s rationale that exchanges are smoother if the children’s drop off is at school rather than closer to bedtime which is the current situation on the Tuesday and Thursday after school visits (Elaziz v. Wahba, 2017 ONCA 58, at para. 3).
[43] Accordingly, on a temporary and interim basis, pending the release of the s. 30 assessment report, the current schedule will remain with the change that the Tuesday and Thursday visits will be replaced with Tuesday overnight visits. The Father will pick up the children from their new school on Tuesdays and drop them off at school on Wednesday mornings. This should also reduce the apparent tiredness of the children caused by the former schedule. Furthermore, I agree with the Father that the children should have two consecutive weeks in the summers with each parent. This is in the best interests of the children.
[44] In addition, at the oral hearing, the parties consented to each attending a parenting course on a separate basis.
Disposition and Costs
[45] The following orders will issue:
(a) A section 30 assessment will be conducted by Mr. Hurwitz. The Father will pay the upfront costs associated with this assessment. Mr. Hurwitz will advise the court of the approximate timeline for the conduct of the assessment and the issuance of his report, as well as his estimated fee. The appropriate allocation of that expense can be determined on the equalization of net family property when that takes place.
(b) On an interim temporary basis, the parenting schedule is as follows: the Father will have the children every other weekend from Friday after school until drop off at school on Monday morning, and every Tuesday from after school to drop off at school on Wednesday morning. The parties will each have two consecutive weeks in the summer.
(c) The parents will each attend at a parenting course of their choice.
[44] If the parties cannot agree on costs, the Applicant will deliver a cost outline and written submissions within 10 days from today, and the Respondent will deliver a cost outline and responding submissions within 10 days thereafter. The written submissions will not exceed 3 double spaced pages each.
Justice S. Vella
Released: December 18, 2023
COURT FILE NO.: FS-22-00031558-0000
DATE: 20231218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RUTH NANCY CIBUKU
Applicant
– and –
ALDI CIBUKU
Respondent
REASONS FOR DECISION
Vella J.
Released: December 18, 2023
[^1]: Cibuku v Cibuku, 2023 ONSC 4576. Her Honour ultimately decided that both children would attend the local public school, rather than Branksome Hall for reasons, including, that the youngest child had been refused a spot at Branksome meaning that she would be going to the public school in any event, and that requiring the Mother to drop off the children at two different schools would likely aggravate the lateness issues. She also noted that the local public school is only a few minutes away and the sisters would be better off at the same public school where NC will have the benefit of an individual education plan for exceptional students under the Education Act, R.S.O. 1990, c. E.2 and O.Reg. 181/98 (paras. 33 and 36, respectively).