COURT FILE NO.: FS-23-019
SUPERIOR COURT OF JUSTICE – ONTARIO 611 Ninth Avenue East, Owen Sound ON N4K 6Z4
RE: Balogh v. Balogh
BEFORE: Justice McGee
APPLICANT: Veronica Balogh, SR vericabalogh97@gmail.com
RESPONDENT: Blanka Balogh, SR brokenhornacres@gmail.com
RESPONDENT: David Dowell, SR dowelldave1@hotmail.com Herman Turkstra as agent for Respondents: Hturkstra@tmalaw.ca
OCL: Tina Jowrey tina.jowrey@ontario.ca
RESPONDENT: Sean Swatuk, SR sean_swatuk@live.ca
ENDORSEMENT ON MOTION
Order that the Section 112 OCL Assessment be Completed on an Expedited Basis
[1] For the reasons set out below, I decline the Respondents’ request for a section 30 Assessment and ask the Office of the Children’s Lawyer (“OCL”) to complete their section 112 Report, under the Courts of Justice Act, R.S.O. 1990, c. C.43, on an expedited basis.
[2] I further request that that this parenting dispute between the Applicant grandmother and the Respondent mother, stepfather and father be scheduled as a priority Trial as soon as the section 112 Report is complete and Court sittings permit. The Trial is currently set for the March 2025 sittings.
Background
The Applicant Grandmother
[3] The Applicant, Veronica Balogh (“Veronica”) is the maternal grandmother of L, aged three. L was placed in her grandmother’s care in February of 2023 following a series of events, which included horrific allegations of drug use, mental illness, and promiscuity levelled by Veronica against her daughter, the Respondent Blanka Balogh (“Blanka”) who is L’s mother.
[4] Since Veronica took over L’s care, she has made an alarming number of reports to public, medical and police personnel that L displays sexualized behaviours, a range of development disorders and that L suffers from unexplained injuries.
[5] Many of Veronica’s reports were not connected to periods when L was in her mother and stepfather’s care.
[6] I have no evidence in the record before me that any of the reports have been independently verified. Bruce Grey Child and Family Services (“CAS”) have been involved and have not verified any risk of harm to L while in her mother and stepfather’s care. They are in the process of closing their file. L has never been in her biological father’s care.
[7] Nonetheless, Veronica and her sister (L’s great aunt) have continued to take L to numerous doctors, therapists, and consultants, often arguing with the service provider when no cause for concern is found. Veronica has sought the assistance of La Leche League while attempting to breastfeed L.
[8] I have no information as to whether the CAS has assessed any risk of harm to L while in her grandmother’s care.
[9] Veronica seeks final Orders within this February 2023 Application that will place L in her sole care and control on a final basis. She asks in her Application that she be granted the responsibility for decision making, and that L only see her mother in limited, supervised settings. When asked during this Motion about her current long-term parenting plan for L, Veronica maintained her view that L should only be with her mother on alternate weekends, in circumstances to which she (Veronica) approved.
The Respondent Mother and Stepfather
[10] Blanka is L’s mother, and the Co-Respondent David Dowell (“David”) is Blanka’s common law partner with whom she shares a 14-month-old son, W. L’s half brother was only a few months old when L was placed into her grandmother’s care. W continues in the care of his parents and by all accounts is thriving.
[11] The final Orders sought by Blanka and David are unknown to me because no Answer has been uploaded to Case Centre, despite counsel for the Respondent’s assurances that an Answer has been served and filed. It is to be uploaded into the pleadings bundle immediately.
[12] From the materials filed to date, I can ascertain that Blanka asks that L be returned to her primary care and have limited, if any contact with her grandmother. She sets out her own childhood journey through her mother’s unwarranted assertions of illness, sexual trauma, and unexplained injury.
[13] Through a lengthy series of Court Orders, L’s time with her mother has progressed to equal time sharing since this Application was issued.
This Motion for a Section 30 Assessment
[14] Blanka fears that her mother is mentally ill and poses a threat of harm to L, as she did to Blanka when she was a child. She has gathered information and supporters who write affidavits and urge her to obtain psychological evidence of Veronica’s mental illness and/or personality disorder.
[15] When the section 112 Report that was being conducted by a clinician engaged by the OCL stalled because the assessor encountered unrelated personal issues, Blanka refused to further participate in the OCL investigation and asked that a section 30 assessor be appointed. Since her refusal, this parenting dispute has been on hold.
[16] In this second motion for the appointment of a section 30 Assessment under the Children's Law Reform Act, R.S.O. 1990, c. C.12, Blanka asks for an Assessment because a section 112 clinician cannot conduct psychological evaluations.
[17] Veronica opposes an Order for a section 30 Assessment because she believes it will harm the family dynamics. In her written submissions she points to the cost of an Assessment, and she writes that she has “serious concerns that such an Assessment will only further divide our already damaged family.”
[18] Blanka’s prior motion for a section 30 Assessment was denied by Justice Agarwal. In reasons released September 16, 2024, he set out his concerns that a section 30 Assessment would take too long and would cost too much and moreover, would prevent the OCL from completing its report.
[19] As a result, this second Motion for a section 30 Assessment was timetabled with a provision that the Regional Clinical Supervisor for the OCL attend court (originally set for November 20, 2024, adjourned to November 28, 2024 before me) to advise the court of the status of the OCL investigation.
[20] Tina Jowrey, the Regional Clinical Supervisor for the OCL, advised at the start of the Motion that the assigned OCL clinician had stepped off the file because of personal issues, but that the OCL was prepared to immediately assign a new clinician to complete the report.
[21] Ms. Jowrey explained that the investigation would not take too long because all of the disclosure materials provided to the previous clinician would be made available to the new clinician. Only certain interviews would need to be updated. She estimated that a Report could be completed within two months, even with the intervening December holiday period.
A Section 30 Assessment Is Not Yet Necessary
[22] Children deserve to have safe, loving, and stable parenting. When adults compete for that responsibility, the dispute must be determined as quickly and efficiently as possible, in accordance with the child’s best interests.
[23] A section 30 Assessment is the highest step on the ladder of evidence gathering within a civil parenting dispute. Section 30 provides as follows:
Assessment of needs of child
30 (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.
When order may be made
(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.
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person.
Consent to act
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.
Attendance for assessment
(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order.
Refusal to attend
(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate.
Report
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court.
Copies of report
(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child.
Admissibility of report
(9) The report mentioned in subsection (7) is admissible in evidence in the application.
Assessor may be witness
(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application.
Directions
(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate.
Fees and expenses
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1).
Same, proportions or amounts
(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay.
Same, serious financial hardship
(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party.
[24] Here, I have no letter from the proposed Assessor that she consents to the appointment or that she agrees to make a report within the period of time specified by the court Order, per section 30(4) above. This matter has already been scheduled for a March 2025 Trial and as I set out below, I have requested an earlier date, if possible.
[25] The Assessment proposed by the mother lacks certain specifics and will take too long. I have been given no certainty that the Assessment can be completed by March 2025. Respondent’s counsel orally indicates that the Assessment will not be ready before May 2025 and that it will cost $40,000.
[26] The amount of $40,000 is beyond the financial means of the parties. Blanka and David state that they are impecunious. I have no reliable evidence of Veronica’s financial means. I am advised that Blanka and David hope to crowdsource or find other means to raise the money for an Assessment but there is no certainty that they will be able to fully fund the amount estimated.
[27] Moreover, in my view, a psychological Assessment is unnecessary in these circumstances. There is already a robust record which speaks to L’s quality of care in her mother’s home and as previously stated, no parenting concerns while L is in her mother and stepfather’s care have been independently verified within the record before me.
[28] There is nothing in s. 30 of the CLRA that prohibits the trial judge from ordering an assessment during, or at the conclusion of Trial, should it later become necessary, see A.C.V.P. v. A.M.P. 2022 ONCA 283.
[29] For example, if the evidence at Trial establishes that Veronica’s observations of sexualized behaviour, developmental delays and unexplained injuries are false, or fictitious distortions, the mother’s claim for L’s return to her fulltime care will be supported by the evidence; as well as the parental autonomy approach. [1] The “why” of the grandmother’s behaviour that can only be evidenced within psychological testing would be secondary. The psychological testing would better inform ongoing grandparent contact, which can be determined at a later time within a focused section 30 Assessment, after L’s primary care has stabilized.
[30] If instead, the evidence at Trial establishes Veronica’s observations of sexualized behaviour, developmental delays, and unexplained injuries to L. while in her mother’s care; Veronica’s claim that she be granted final care and control of L will be supported by the direct evidence available from the parties, their witnesses and the OCL. Psychological testing will better inform what time, if any that L should spend in her mother and stepfather’s care, which can also be determined at a later time within a focused Assessment, after L’s primary care has stabilized.
Request to Expedite the Section 112 Report and the Trial
[31] Time is of the essence for this young child. Over the past 22 months, 12 Central West Judges have now written 17 lengthy, concerned endorsements on this confounding parenting dispute between grandmother and mother.
[32] I request that the OCL section 112 Report be completed on an expedited basis. I dispense with the consent of either party to complete the section 112 Report. I also request that the Trial proceed at the end of the two-month period estimated by the Regional Supervisor, after the clinician’s disclosure meeting.
[33] A combined Trial Management Conference and Settlement Conference was to have proceeded on October 31, 2024 but could not, because the in-progress section 112 Report had been called off by Blanka in her quest to obtain a section 30 Assessment that would include psychological testing.
[34] A combined conference may be rescheduled through the Owen Sound Trial Coordinator after the OCL clinician’s disclosure meeting. The matter is to remain on the March 2025 Trial sittings, subject to further Court Order.
Costs
[35] It is not appropriate to determine costs following this Motion as the result will follow closely with the final result at Trial. Costs are reserved to the Trial Judge.
McGee J. Released: December 17, 2024
[1] For an excellent summary of the parental autonomy approach, see Himel J’s reasons in Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896, 3 R.F.L. (9th) 369 (Ont. S.C.).