Court File and Parties

COURT FILE NO.: FS-23-45951-0000 DATE: 2024 06 06

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y7

RE: A.S. AND: D.S.

BEFORE: Conlan J.

COUNSEL: Novalea Jarvis, for the Applicant/ Moving Party Self-Represented, Respondent

HEARD: June 6, 2024

ENDORSEMENT

[1] Today, the Court heard the Applicant/Moving Party father’s motion for equal parenting time with the child, M. (15 years of age). The other child (18 years of age) was not a subject of the motion.

[2] The parties spent much time in their materials objecting to certain evidence put forward by the other. It is not necessary for this Court to resolve those objections. What drives the Court’s decision today is the best interests of the child, M.

[3] The Respondent mother’s primary position is that the motion should be dismissed because there is no demonstrated material change in circumstances. That argument cannot succeed. There is no order in place for regular parenting time (the Final consent Order of Justice Chang made on February 12, 2024 does not deal with regular parenting time, and there is no other relevant order that has been made), and thus, there is no requirement to establish a material change. In the absence of a court order, the status quo cannot amount to something that requires a material change to alter it when, as here, one or both parties object(s) to that status quo.

[4] There is a dispute between the parties about whether the mother previously agreed to an equal parenting regime with regard to the child, M., either orally between the parties or at closed mediation. Even assuming, without deciding, that the mother did agree to that previously, it would not change the Court’s disposition of the matter.

[5] In my view, a voice of the child (“VOC”) report is advisable. M. is the ideal age for such a report – old enough, and mature enough, to make his views and preferences known. There is no reliable evidence before the Court which may serve as a reasonable substitute for such a report, mainly because the parties disagree as to what the child wants. I respectfully disagree with Ms. Jarvis that such a report will unduly delay the matter or make the child choose between his two parents.

[6] This Court orders as follows:

1. the father’s motion is adjourned sine die, to be brought back on three clear business days’ notice to the mother;
2. I am seized of this matter;
3. Ms. Jarvis shall provide a copy of this Endorsement to Mr. Geoffrey Carpenter;
4. if Mr. Carpenter is available and if he agrees, he shall meet with the child, M., as soon as possible and prepare a VOC report which shall be shared with both parties and with the Court;
5. if another assessor is required, in that Mr. Carpenter for whatever reason cannot take on the matter, then Ms. Jarvis shall report that to the Court, and I will then make an order for someone else to do the VOC report;
6. this VOC report is a private engagement – the parties shall jointly pay for the work done by Mr. Carpenter at his usual private rate;
7. if either party refuses to pay, then that shall be reported to me so that I can take further action;
8. if there are any questions about the within Order, by either party or by Mr. Carpenter, then a court attendance by Zoom may be arranged through the trial office; and
9. there are no costs for today, and whether there are any costs ordered in favour of either side at the return of the motion will be decided at that time.

[7] This Court expects full cooperation with the assessor from both sides. These folks have spent a lot of time and a lot of money in this litigation thus far. They cannot reasonably complain about having to spend some money on the VOC assessment and report. They can clearly afford it. They will be getting the benefit of an experienced and neutral lawyer, mediator, arbitrator, and assessor.

[8] In my opinion, the VOC report is appropriate in this case in order to satisfy section 16(3)(e) of the Divorce Act. Ms. Jarvis is absolutely correct that such a report is not always necessary, nor is it a requirement by the legislation or the jurisprudence. Each case is different. In this case, given (i) the high conflict between the parties, and (ii) the divergent evidence filed, and (iii) the age and maturity of M. (both parties agree that the child is mature and articulate and well-capable of making his views and preferences known), and (iv) the lack of any reliable evidence otherwise about M.’s views and preferences, and (v) the importance of a court order for equal, 50-50, parenting time (which is what the father is seeking), such a report is advisable.

[9] There are too many litigants coming to court and demanding that the only way to respect Canada’s responsibilities as a signatory to the United Nations Convention on the Rights of the Child, Article 12, is for the judge to order that an independent professional assessor become involved and interview the child, regardless of the individual circumstances of the case. That is clearly wrong. Such a submission is not justified by the Convention itself, or by any provision in the Divorce Act, or by any binding jurisprudential authority that I am aware of. Such a submission is an oversimplification that derogates from the plain wording of the legislation itself, in that Parliament could have worded section 16(3)(e) of the Divorce Act differently so as to specify how, or in what evidentiary form, a judge should meet the mandatory requirement to consider the child’s views and preferences, except where they cannot be ascertained, in determining that child’s best interests. Parliament chose not to do so. One might reasonably conclude that the choice not to was informed by considerations that include limited resources on the part of families, limited resources on the part of the Office of the Children’s Lawyer, and the desire not to hold a child in limbo while we wait for something from a third party that may not be necessary.

[10] In our case, though, the mother is correct – a VOC report should be obtained before the father’s motion is decided, even on a temporary basis.

[11] Ms. Jarvis shall take out a formal order in accordance with this Endorsement, and that formal order shall also be copied to Mr. Carpenter.

Conlan J. Released: June 6, 2024