COURT FILE NO.: FS-22-00031058-0000 DATE: 20240503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Meyerhoffer, Applicant AND: Trevor Meyerhoffer, Respondent

BEFORE: Madam Justice A.P. Ramsay

COUNSEL: Emma Katz and Kate Deveau, for the Applicant Justin Lee, for the Respondent

HEARD: April 9, 2024

ENDORSEMENT

I. Introduction

[1] The respondent father seeks an order for a s. 30 assessment under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[2] The respondent seeks, in the alternative, an order that if Howard Hurwitz becomes unable or unwilling to conduct an assessment, the parties shall engage Irwin Butkowsky, and if Irwin Butkowsky becomes unable or unwilling, the parties shall engage a mutually agreed upon qualified professional.

[3] In the alternative to an order for an assessment, the respondent seeks an order that the parties engage in multi-faceted family therapy with Ricardo Theoduloz on the conditions that the process shall be open, that either party may request that a report be provided, that each party will provide the requisite retainer fee, that costs to be shared equally, and that the applicant reimburse the respondent for her share of the retainer fee provided to Mr. Theoduloz for the purposes of preparing a Clinical Intake Consultation summary report. The motion is opposed by the applicant mother.

II. Background

[4] The parties were married for approximately 18 years, from 2008 to 2021. The parties have three children ages 13, 11 and 8 years old. Their 13-year-old child has not seen his father for over a year. Their 11-year-old child has not seen her father for over six months. Both children are refusing to see their father.

[5] The applicant commenced this proceeding on July 29, 2022. The respondent filed an Answer on November 3, 2022.

[6] In July 2023, following a settlement conference, the parties reached a resolution of all issues, and thereafter executed Minutes of Settlement dated July 24, 2023 (the “Minutes”). Paragraph 5 of the Minutes indicates: “The parties wish to fully resolve all claims associated with the Applicant’s Application dated July 29, 2022.”

[7] The parties agreed that the Minutes constituted a domestic contract entered into under the Family Law Act, R.S.O. 1990, c. F.3, and prevails over the same matters in the statute. Paragraph 7 of the Minutes states: “The parties agree that these Minutes of Settlement (‘Minutes’) are entered into under the Family Law Act and constitute a domestic contract, which prevails over the same matters provided for in the said Act and that the Minutes shall take effect on the date they are signed by the last of the parties.”

[8] As part of the settlement, the parties agreed to equal parenting time for each of them, and the Minutes set out the terms of the parenting time schedule and Family Therapy Intervention (“FTI”). At the time of the settlement, the parties’ oldest son was refusing to see his father. The Minutes also contemplate that the parties would negotiate and finalize a detailed parenting plan addressing the remaining issues, including a framework for decision-making responsibility, a holiday schedule, and communication.

[9] Under the terms of the Minutes, the parties agreed that if they could not agree on the remaining issues, they would mediate and arbitrate those issues with Michael Kleinman in accordance with the terms agreed to under the “Dispute Resolution” section of the Minutes. Paragraph 20 of the Minutes reads:

20. The parties will negotiate and finalize a detailed Parenting Plan outlining any remaining issues including a framework for decision-making responsibility, a holiday schedule, and communication. If the parties cannot agree on the remaining issues, they will mediate and arbitrate them with Michael Kleinman pursuant to the Dispute Resolution section below.

[10] The preamble of clause 49 indicates that the Dispute Resolution section “applies, as specified in the dispute resolution paragraphs below, to” various circumstances. Subparagraph (b) indicates “[d]etails of the parenting plan, namely a framework for decision-making responsibility, a holiday schedule, and communication between the parties.” Subparagraph (e) indicates “[a]ny other terms of the Minutes of Settlement the parties have dispute over.”

[11] Under the terms of the Minutes, the respondent and his eldest son were to participate in FTI with Mr. Theoduloz to facilitate the son’s reunification with the respondent.

[12] The parties and the children have only completed the intake stage. There were 12 sessions completed between September 2023 and January 2024.

[13] The parties are awaiting Mr. Theoduloz’s summary report, which will include recommendations for next steps. Reunification therapy, proper, has not yet commenced.

[14] The counsellor apparently indicated he would not continue without an agreement to the objective of a “multifaceted family therapy.” The applicant apparently indicated she would only participate if the session were closed with no report. Since that time, the parties’ 11-year-old child has refused to see her father.

III. Disposition

[15] The motion is dismissed, for the reasons which follow.

IV. Analysis

[16] The respondent submits that a s. 30 assessment is necessary and appropriate for this family to obtain professional insight into parenting issues and to determine appropriate solutions.

[17] The respondent does not challenge the validity of the Minutes. He does not dispute that the Minutes constitute a domestic contract between the parties. He does not dispute that the issues in the proceedings were resolved, with the outstanding parenting time schedule and FTI issue being referred to a mediator/arbitrator as selected by the parties. He does not dispute that there is no active proceeding before the court.

[18] The respondent argues, however, that the Minutes do not contain the standard clauses contained in the regulation Family Arbitration, O. Reg. 134/07 under the Arbitration Act, 1991, S.O. 1991, c. 17, and that the mediator/arbitrator selected by the parties under the Minutes, Mr. Kleinman, does not have jurisdiction to address the s. 30 assessment.

[19] The respondent says if the court were to find that it has no jurisdiction to order a s. 30 assessment, then he asks that the court direct that any further session with Mr. Theoduloz be an open process.

[20] The respondent is also asking this court to direct that the applicant reimburse him for the cost of the report being prepared by Mr. Theoduloz.

[21] The respondent submits that given the parties’ differing views with respect to incidents of parenting, their inability to resolve most issues without counsel intervention, and their total distrust of each other’s parenting abilities, the court would benefit from having a professional independent expert opinion on the needs of the children and the parents’ ability and willingness to satisfy those needs.

[22] The applicant argues that the court does not have jurisdiction to hear this matter. The applicant submits that it is the mediator/arbitrator selected by the parties who has jurisdiction. She argues that the Minutes are a domestic contract negotiated with independent legal advice, that they resolve all issues on a final basis, including the parenting issues, and what remains is for the Minutes to be incorporated into a final Order on consent. She argues that the parties must participate in the dispute resolution mechanism agreed to in the Minutes and says the contract must be upheld unless there are compelling reasons to justify deviation. She says the Minutes clearly set out that the dispute resolution section applies to the “details of the parenting plan” and “any other terms of these Minutes of Settlement the parties have dispute over.” A s. 30 assessment falls within the realm of “details of the parenting plan” as well as the parenting schedule and therefore Mr. Kleinman has jurisdiction over this issue.

[23] I agree with the applicant that the court has no jurisdiction to make the order sought. Generally, the court has jurisdiction to appoint assessors to assess parenting and decision making and make recommendations to the court under s. 30 of the CLRA: see Young v. Young, [1993] 4 S.C.R. 3; Kucan v. Santos, 2017 ONSC 6725.

[24] Section 30(1) of the CLRA reads:

(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.

[25] Subsection 30(2) addresses when such an order may be made by the court. The provision reads:

(2) An order may be made under subsection (1) on or before the hearing of the application and with or without a request by a party to the application. [Emphasis added.]

[26] An assessment should only be ordered where expert input is reasonably necessary to assist the court in determining the issues that are before the court. If, on all the evidence, the court is able to reasonably decide the issues, without the assistance of an assessor, then the assessment should not be ordered: see, Baillie v. Baillie, 2012 ONSC 3728, 26 R.F.L. (7th) 130, at para. 38; Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C).

[27] These reports can be helpful to the court and assist in resolving the litigation short of trial: see Parniak v. Carter (2002), 30 R.F.L. (5th) 381 (Ont. C.J.), at para. 29. In this case, there are no proceedings before the court. The parties have resolved all issues in the proceedings. The parties executed the Minutes dated July 24, 2023. The terms of the Minutes are to be incorporated into a final Order. There will be no “hearing of the application” in this case.

[28] Even if the court had jurisdiction to make the order sought, I am not satisfied, on the evidence before me, that the order ought to be made.

[29] The applicant submits that the purpose of a s. 30 assessment is to assess and report to the court on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child, and that such an assessment is not appropriate for this family. I agree.

[30] The best interests of the children is the paramount consideration by the court in determining parental issues: see Gordon v. Goertz, [1996] 2 S.C.R. 27; Young.

[31] In Young, L’Heureux-Dubé J. cautioned against the reliance of the court on the recommendations of experts to determine, using the predecessor vernacular, custody and access issues (i.e. parenting and decision making responsibility). She stated:

I agree with my colleague that expert evidence should not be routinely required to establish the best interests of the child. In my view, it is a modern day myth that experts are always better placed than parents to assess the needs of the child. Common sense requires us to acknowledge that the person involved in day to day care may observe changes in the behaviour, mood, attitude and development of a child that could go unnoticed by anyone else. The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will often provide the most reliable and complete source of information to the judge on the needs and interests of that child. [Emphasis added.]

[32] In the recent case of A.C.V.P. v. A.M.P., 2022 ONCA 283, at para. 30, the Ontario Court of Appeal noted 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”.

[33] The respondent must establish the need for such an assessment. An assessment may be ordered where there is sufficient evidence that such an assessment would be directly relevant to determining the best interests of the child: A.C.V.P., at para. 27; Merkand v. Merkand, at para. 6, leave to appeal refused, [2006] S.C.C.A. No. 117.

[34] The party requesting the assessment has the onus and must establish that there is a need for the type of information that only an expert can provide, and information that would not otherwise be discoverable. A court should not order an assessment over a party’s objections unless the person seeking the assessment can establish a purpose for the assessment other than simply providing another person to decide the case or obtaining another point of view on what is in the child’s best interests: Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 43, at para. 27. In Glick, Kiteley J. provided a non-exhaustive list of factors, gleaned from the jurisprudence, which the court ought to consider in determining whether an assessment is warranted.

[35] Courts have acknowledged that children who are subject to parenting disputes have already been exposed to a great deal of stress, disruption, and professionals: see Glick. As such, courts will consider if there is an alternative to a s. 30 assessment, which may require interviews with many collaterals and may involve a combination of professionals.

[36] The court has also recognized that children involved in parenting dispute or child protection proceedings are at their most vulnerable and exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, at para. 65, aff'd 2008 ONCA 260. In this case, the views of the 13-year-old and 11-year-old were the subject of the Voice of the Child Report by the Office of the Children’s Lawyer.

[37] The potential benefit of expert assistance must be weighed against the fact that assessments are expensive, intrusive, and time-consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment: Baillie, at para. 39; Butler v. Percy; Hodgson v. Hanson; Johnstone v. Brighton (2004), 6 R.F.L. (6th) 288 (Ont. S.C.).

[38] A s. 30 assessment is a highly intrusive process: see Glick, at para. 27. Courts have been clear that s. 30 assessments should not be ordered routinely.

[39] Multiple professionals have been engaged by the parties. As part of their settlement, the parties agreed to engage in FTI with Mr. Theoduloz. Mr. Theoduloz has apparently indicated that he is prepared to commence closed therapy, which should be the priority at this time.

[40] As well, in January 2023, the parties agreed to engage Dr. Shely Polak for a Voice of the Child Report. In addition to Mr. Theoduloz and Dr. Polak, the following individuals have been engaged by the parties:

a. Christine Kim for parenting mediation; b. Liana Lowenstein for therapy for the children; c. Elsa Monteiro for therapy for their 11-year-old child; and e. Michael Kleinman for mediation of all issues.

[41] Section 30 assessments are also costly. I note that the applicant says neither party can afford to commission another costly report. As noted by Kiteley J. in Glick, the cost of the assessment will usually be an important consideration, although not necessarily determinative. But the factors identified support my view that the objective of the assessment is to assist the court. The jurisprudence establishes that a cost-benefit analysis is required, which has not been completed here. Kiteley J. noted some of the questions to be answered: “How much will the expert evidence really help the Judge? What are the financial (and other) implications of delay? And how much would an assessment help the parties avoid (or simplify) a trial?”

[42] Based on all the above, the respondent has not satisfied the court, on the record, that appointing a s. 30 assessor would be of use to the court and the parties.

[43] Furthermore, as noted in Glick, at para. 54: “[Section] 30(4) requires that the court not appoint a person unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.” The applicant says the respondent served his motion materials prior to providing the names of proposed assessors, their consent, availability, timing, length, and cost of the assessment process. While this is true, the respondent has now provided some of this information, rendering the failure to provide this critical information merely technical deficiencies.

[44] The respondent has proposed Howard Hurwitz and Irwin Butkowsky. However, there continues to be critical information lacking with respect to one of the proposed professionals. Mr. Hurwitz has indicated that the process will take four months. There is no evidence of Mr. Butkowsky’s availability nor how long he expects the process to take.

[45] It is not clear to the court whether Mr. Hurwitz has consented to undertake the assessment and how much the process would cost. There is no indication that Mr. Butkowsky has consented to the process or any information about the costs for him to complete the assessment. The court may decline to order a s. 30 assessment where the assessor has not consented to undertake the assessment: see: Medjuck v. Medjuck, 2019 ONSC 3254, 28 R.F.L. (8th) 190, at paras. 20 and 22.

[46] In my view, ordering a s. 30 assessment in a vacuum would only add another layer of complication and delay to a process which the parties have agreed to by participating in the mediation with Mr. Kleinman, as contemplated by the Minutes.

[47] The applicant submits that the Minutes mandate the parties to return to Mr. Kleinman to finalize the parenting plan. Given my conclusions above, I need not consider whether the Minutes are a domestic contract or whether Mr. Kleinman has jurisdiction to deal with the issue of whether a s. 30 report should be ordered – issues raised by the parties on the motion.

[48] In my view, the respondent conflates the Minutes with the arbitration agreement. The parties may be in arbitration without an actual arbitration agreement, but that is not to be decided by the court. Whether the Minutes also constitutes an arbitration agreement is left to be determined for another day. The answer does not change my conclusion.

V. Conclusion

[49] As the parties have settled the proceedings, the court has no authority to invoke s. 30 of the CLRA to appoint an assessor “to assess and report to the court”. As this issue is dispositive of the respondent’s motion, I need not consider whether the mediator/arbitrator has jurisdiction to deal with the matter. Beyond that, even if the court had jurisdiction to make the order sought, I am not inclined to make it on the facts of this case.

[50] As for the balance of the relief sought by the respondent, the respondent has not provided any authority for the court’s jurisdiction to order an open counselling process or that the applicant reimburse him for the cost of Mr. Theoduloz’ report.

[51] The parties settled all issues in the dispute. The Minutes deal with the retainer of Mr. Theoduloz. The Minutes entered into by the parties to resolve all issues in dispute constitutes a contract, and the ordinary law of contracts would apply. The Minutes deal with parenting, address Mr. Theoduloz’s retainer, contain a mechanism for the parties to resolve any dispute for those matters identified under the Dispute Resolution section, and include the parties’ choice of mediator/arbitrator. As the parties have reached a settlement, the court declines to infer terms into the agreement.

VI. Costs

[52] I would encourage the parties to agree on costs. If the parties are not able to resolve costs, the applicant may submit her costs submissions to the Trial Coordinator within ten days of the date of this endorsement, limited to two pages, together with a Costs Outline, and the respondent may submit his costs submissions, together with a Costs Outline, ten days thereafter. There shall be no reply submissions.

Justice A.P. Ramsay

Date: May 3, 2024