Court File and Parties

COURT FILE NO.: FS-20-18690 DATE: 20241021 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Marie Shipton AND: Aamir Saleem Shipton

BEFORE: Justice Kraft

COUNSEL: Michael Tweyman, Counsel, for the Applicant David Tobin, Counsel for the Respondent

HEARD: October 9, 2024

Endorsement

Nature of the Motion

[1] The respondent father seeks an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”) pursuant to s.112 of the Courts of Justice Act. The applicant mother objects to this order on the basis that there is no need for such a report and if the Court were to ask the OCL to conduct a s.112 investigation and the OCL accepted the file, it would potentially delay the trial scheduled in this matter to begin on March 17, 2025. The mother submits that any delay of the trial is not in the child’s best interests since this matter has been significantly delayed by the Ontario Court of Appeal overturning the trial judge’s decision and ordering a new trial take place on an expedited basis.

Litigation History

[2] By way of a brief overview, the mother seeks to relocate with the parties’ daughter to Ireland. A five-day trial of this matter was held in February 2023.

[3] At trial, the mother alleged that the father was controlling and had engaged in family violence. The evidence called by the mother at trial included a friend in whom she had confided about the father’s abusive behaviour and two midwives who spoke about the dynamic between the parties. The mother’s sister and mother also gave evidence. In addition to alleging that the father acted in a controlling and abusive manner toward her during their 8-year relationship, the mother alleged the father was controlling of her finances and her relationships with friends and family. The mother submitted at trial that it was in the child’s best interests to relocate given that she had an optometry job there, her parents and sister who live there would be able to assist her with caring for the child and she could obtain financial security. [1]

[4] The father denied the mother’s narrative. He acknowledged the marriage was tumultuous and highlighted the mother’s role in the discord. The father denied being physically, emotionally, or psychologically abusive toward the mother and claimed the mother had mental health issues. [2]

[5] The trial judge denied the mother permission to relocate with the parties’ three-year-old child from Toronto to Ireland. The trial judge rejected the evidence of the witnesses who testified about their perceptions of the father’s coercive behaviour and he rejected the mother’s claims of family violence. [3]

[6] The mother appealed the trial judgement. On August 21, 2024, the Court of Appeal overturned the original trial decision, finding, among other things, that

“The reasons for the trial judge disclose material errors, serious misapprehension of the evidence and errors of law. He misconstrued and ignored relevant evidence. He also relied on extraneous considerations that were not before him.” [4]

[7] Based on all these reasons, the Court of Appeal directed a new trial of the matter.

[8] In paragraph 88 of the Court of Appeal’s judgment, it stated,

“For these reasons, I would allow the appeal. If the parties are unable to resolve the matter out of court, I would order a new trial on an expedited basis. If the parties decide to pursue a new trial, I would direct them to be proactive in seeking the assistance of a case management judge to focus on the live issues in this case without repeating some of the uncontroversial and undisputed evidence called during the first trial. “ [Emphasis added]

[9] After the Court of Appeal rendered its decision, the parties attended before Diamond, J., as the case management judge, and an expedited new trial was set for the week of March 17, 2025. While Diamond, J. scheduled the father’s motion seeking a s.112 OCL assessment/report for October 10, 2024, his endorsement clearly states as follows:

I note for the benefit of the presiding motions judge that the trial of this proceeding has been ordered to proceed on an expedited basis by the Court of Appeal for Ontario. In the event the respondent’s motion is successful (and I leave that decision to the presiding motions judge), the OCL’s involvement must be ordered to proceed on a timely enough basis so that any section 112 report is completed and available for the parties and the Court in advance of March 17, 2025 trial date.

Issue for me to Decide

[10] The sole issue for me to decide on this motion is whether the Court should request that the OCL conduct a parenting assessment pursuant to s.112 of the Courts of Justice Act?

[11] Section 112(1) of the Courts of Justice Act provides that in a proceeding under the Divorce Act in which a question concerning decision-making responsibility, parenting or contact with respect to a child is before the court, the Children’s Lawyer may

a. cause an investigation to be made on all matters concerning decision-making responsibility, parenting time or contact with respect to a child;

b. cause an investigation to be made on matters specified by the court related to decision-making responsibility, parenting or contact with respect to the child; or

c. meet with the child to determine the child’s views and preferences with respect to matters that may include decision-making responsibility, parenting time or contact.

The Father’s Position

[12] The father’s position is that involvement of the OCL is necessary because the parties have widely varying views of the other’s parenting ability and the child’s best interests. Mr. Tobin submitted that involving the OCL would help give the trial judge important information about how the parties co-parent and communicate and there is no downside to involving them.

[13] The father also submits that the OCL could be asked to complete a “focused” report. An email from Lori Bennett, Senior Manager of Clinical Services to counsel for the father on October 1, 2024 was attached as an Exhibit to an affidavit, explaining that “a focused report is still a Children’s Lawyer Report (s.112) but it is a much briefer report that is completed when there is a very specific question to which the court is seeking an answer, and where that answer can be obtained without completing all of the steps that are necessary for the full s.112. The timeline depends on what steps are necessary.”

[14] In answer to a question from the court as to what specific questions the husband thinks should be posed to the OCL if a focused s.112 report was requested, Mr. Tobin stated the questions would be:

a. Is the child more bonded to one of the two parents?; and

b. Does either parent use physical discipline on the child?

[15] Mr. Tobin argued that to address the mother’s concern about potential delay to the trial, the father would agree that he would not seek an adjournment of the trial if the OCL decides to become involved and their report is not finished by the time the trial is supposed to begin.

[16] That position, in my view, on the husband’s part is a non-starter. Even if the husband agrees that he would not seek an adjournment of the trial, the trial judge may decide that the trial should not proceed on March 17, 2025, if he or she is aware that there is an OCL investigation pending.

The Mother’s Position

[17] The mother does not agree than an OCL report can determine whether it is in the child’s best interests to relocate. She argues there is no value to the court in having the OCL involved in this matter. Mr. Tweyman submits that if the OCL agreed to take on the matter and reported on whether the relocation was in or not in the child’s best interests, that would simply be another opinion for the Court and that question is a question that can only be answered by the trial judge.

[18] The mother argues that neither parent has brought a motion in this proceeding regarding the other parent’s parenting capabilities. Mr. Tweyman noted that the parties have generally been co-parenting fine. Further, he submits that neither party asked the court to request the involvement of the OCL before the first trial which took place in February 2023. In addition, the mother argues the OCL cannot weigh in on the relocation issue or the mother’s claims regarding family violence that took place during the marriage.

[19] Once of the mother’s main concerns is that the new trial would be further delayed. If the OCL is requested to become involved and agrees to take the matter on, and the report is not completed in time for the trial, she submits that the trial judge would most certainly not want to proceed with the trial without the OCL report. I agree with this statement.

[20] Finally, the mother argues that the test is not whether there is any downside to involving the OCL but, rather, whether involving the OCL and asking them to complete a s.112 report would be helpful in a material way to the trial judge in determining the child’s best interests.

The Law

[21] Whether the OCL becomes involved in a case is at the discretion of the OCL. The OCL has the discretion to decide whether to cause an investigation to be made and whether to report and make recommendations to the court on matters of custody and access (now referred to as decision-making responsibility and parenting time); Bhajan v. Bhajan, 2010 ONCA 714.

[22] A child should be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body. However, this is not a case where the views and preferences of the child can be reasonably ascertained given her young age.

[23] In the case of Flood v. Flood, 2018 ONCH 322, Christie, J. aptly set out the considerations the court should weigh in determining whether to involve the OCL, at paragraphs 34 and 35 set out below:

[34] W here the issue for the court to determine is that of the bests interests of the child, as it is in the case at bar, the question the court should ask itself is whether the involvement of the Office of the Children’s Lawyer will likely be helpful in determining what is in the best interests of the child ultimately. This may include a consideration of the age of the child and the ability of the particular child to express his or her views. There should be no bright line age cut-off whereby it is determined that the child is too young to effectively participate in the process. Every child is different. Many very young children are extremely articulate and quite capable of expressing their thoughts and opinions; on the other hand, there may be older children who are very quiet or withdrawn to the point of not being able to share their thoughts. This should be determined on a case by case basis. The Court should also consider whether the involvement of the Office of the Children’s Lawyer is in the best interests of the child, considering other factors external to the child, but factors that will ultimately affect the child, such as any delays that will be caused in the proceedings , and any harm that might be caused to the child by the involvement of the Office of the Children’s Lawyer.

[35] At the end of the day, it is a balancing exercise that must be performed in each case to weigh and consider these factors, and to ultimately determine whether making such an order promotes the best interests of the child.

[Emphasis Added]

Analysis

[24] I do not find that the appointment of the OCL to conduct a s.112 report will add value for the Court to decide the relocation issue which is the subject matter of the new trial set to being on March 17, 2025.

[25] The child is only 5 years of age. If she were older and her views could be ascertainable with some reliability then the involvement of the OCL would be important to obtain the voice of the child.

[26] There are no third-party collaterals involved with the child. There has been no police or Children’s Aid Society involvement with the family. There are no clinical issues that have been raised by either parent with respect to the other parent or the child.

[27] If the OCL is asked to complete a “focused” report to answer the specific questions as to whether the child is bonded to either parent or whether either parent uses physical discipline, neither question will necessarily be able to be answered by the OCL conducting a s.112 report, nor are they issues on which the OCL can actually have input. No one is suggesting that the child is not bonded to both of her parents. During observation visits, it cannot be determined whether physical discipline is used by either parent. However, the trial judge can make findings of credibility with respect to the issue of discipline.

[28] The father did not suggest that the question be posed to the OCL as to whether the child should reside primarily with the mother in her proposed place of relocation, namely, Ireland? That is because this is not a question that can answered by way of a s.112 assessment, even if it were a focussed report. Those are questions that are strictly the purview of the court: Urban v. Hendry, 2023 ONSC 548, at paras. 14.

[29] While there may be a proposition that a s.112 assessment should be ordered in mobility cases as ordered in Scott v. Sawchuk, 2021 ONSC 5903, in that case the children were acting out and showing great distress and did not want to return to their mother. In this case, there is nothing on the record suggesting any distress being experienced by the child and/or a level of distress on the part of the child that rises to what was evident in the Scott v. Sawchuk case.

[30] Further, while there may no longer be a requirement for a clinical issue to be present for the court to order a s.112 assessment as found in A.C.V.P. v. A.M.P., 2022 ONCA 282, it is still an inquiry based on the facts of the case. Aat para 30, Coroza, J.A. stated,

“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. [5]

[31] The OCL website explains what a clinician from the OCL does in a Children’s lawyer report is sought. The website states as follows:

If assigned to complete a clinician’s report, the clinician will:

• meet with the parents and any other parties in the case
• meet with the child as many times as he or she believes is necessary
• may observe the child with the parents or parties
• contact relevant sources of information, like teachers, doctors, day care providers, therapists, etc.
• meet with the parents or parties to provide feedback and may suggest ways to resolve the issues
• write a report with details of the investigation and recommendations about the issues in the case
• share the report with the parents or parties
• file the report with the court

[32] As stated above, there are no other parties in this case for the OCL to meet with other than the two parents. There are no third parties involved with the children, other than the child’s teacher and doctor, both of whom can be called as witnesses at trial. There are no therapists working with the child or other health care providers involved with the child. If the OCL conducts observation visits with both parents and the child, it will not be able to provide the court with assistance regarding the issue of the child’s relocation, which is the only issue the court needs to determine.

[33] The OCL website also sets out that once a clinician contacts a client, it can take between 90 and 120 days to complete the investigation and then a report needs to be written. That could easily result in the OCL requiring until early or mid March to complete the report, particularly given the Christmas holidays and if there is a delay between the court making the request of the OCL and the OCL deciding whether to take on the matter and assigns a clinician quickly.

[34] For the reasons listed below, I dismiss the father’s motion to request the involvement of the OCL to complete a s.112 report:

a. This family has been waiting since early 2023 to have the issue of relocation determined. The appeal was granted to the mother and the Court of Appeal ordered that the new trial be expedited. Any further delay beyond March 17, 2025 will not be in the child’s best interests. Making an order seeking the involvement of the OCL may very well cause delay of the trial. Even if no delay occurred, an OCL report will not necessarily shed light on the two issues on which the father seeks input.

b. Judicial resources are limited and there may not be another judge who can hear this trial if the March 17, 2025 trial is adjourned due to an OCL report.

c. The trial judge cannot defer the decision regarding relocation to the OCL. The OCL would not be asked, in any event, to opine on whether a relocation would be in the child’s best interests.

d. Both parties have experienced family law counsel who can put the relevant and necessary evidence before the trial judge.

e. This is not a case where the child has special needs or clinical issues, or where there is information or reports from third party collaterals where the OCL could assist the court in synthesizing and understanding the information. Other than the parties, the child’s teacher and doctor are the only third parties involved and each can be called as witnesses directly.

f. At age 5, the child is too young for the OCL to determine her views and preferences in a meaningful way with reliability.

g. A dispute regarding parenting time (or decision-making responsibility) constitutes a question of fact. While an assessment may offer assistance in resolving such disputes, it is not required for making a determination. [6]

[35] Balancing all of the competing interests, I find that it is in the child’s best interests that her parents’ dispute about where she is going to live be adjudicated as soon as possible. I agree with Kitzpatrick, J. in the recent decision of K.S. v. L.S.(D), 2023 ONSC 5065, in paragraph [14], where the request for an adjournment of a relocation trial was denied because the OCL could not complete its report within the timeframe ordered by the court in which the court stated, “..I have taken into consideration the adage that justice delayed is justice denied. In my view it continues to be an apt piece of wisdom.”

Disposition

[36] The father’s motion seeking to request the involvement of the OCL is hereby denied.

[37] If the parties cannot resolve the issue of costs, the mother shall serve written costs submissions of no more than 3 pages in writing, not including a Bill of Costs or offers to settle within 10 days. The father shall serve responding written costs submissions of no more than 3 pages, not including a Bill of Costs or offers to settle within 7 days of being served with the mother’s costs submissions. Reply submissions, if any, shall be no more than 1 page in writing and served within 5 days of being served with the responding costs submissions.

Justice Kraft Date: October 21, 2024

[1] See Shipton v. Shipton, 2024 ONCA 624, at paras. 10 and 11. [2] Ibid, at para. 13. [3] Ibid, at para. 14. [4] Ibid, at para. 24. [5] See also Urban v. Hendry, at para. 22. While that case was dealing with a s.30 assessment under the Children’s Law Reform Act, the same considerations must be undertaken by the Court in determining whether to order a s.112 assessment under the Courts of Justice Act. [6] Bailee v. Middleton, 2012 ONSC 3728, at para. 37.