Ontario Superior Court of Justice

Court File No.: FC-23-396
Date: 2025-07-07

BETWEEN:
H.S., Applicant Mother
– and –
D.N., Respondent Father

Roselyn T. Pecus, for the Applicant Mother
James D. Singer, for the Respondent Father

Heard: June 20, 2025
Justice Alex Finlayson

PART I: NATURE OF THIS LONG MOTION TO IMPLEMENT A SECTION 30 ASSESSMENT REPORT

[1] This is primarily a high conflict parenting case, although I understand there are also financial issues to be resolved.

[2] The parties have two children, a boy named D., who is 12, and a girl named C., who is 10.

[3] There has been an extreme amount of parental conflict going on. The father overheld D., at first for almost two months during the fall of 2023, contrary to the post-separation status quo of the children residing primarily with their mother. The father continued to overhold D. for a further three weeks contrary to the Order of Bird J. dated December 22, 2023, that D. be returned to his mother. Jarvis J. even saw fit to incarcerate the father, temporarily on January 11, 2024, in aid of D.’s return. On April 15, 2025, he later ordered the father to pay an escalating fine for his further breaches, to secure his compliance.

[4] Overholding is not the only example of non-compliance in this case. The father has unilaterally cancelled some of his visits, and shortened the length of others. The mother has sent D. to his father’s house at times, also departing from the schedule that was supposed to be followed. The parents have been unable to engage with each other appropriately, contrary to Bird J.’s Order about parental communications. There has been non-cooperation and obstruction during the section 30 assessment process of Howard Hurwitz, that the parties agreed to undergo on consent. Mr. Hurwitz says there are now “clinical gaps” in the assessment, and an update is required.

[5] Apart from the non-compliance with Orders, there have been numerous contacts with the York Region Children’s Aid Society (the “Society”) and the York Regional Police Service (the “police”). Referrals to the Society have been initiated by both parents, and by others, including the police, a victim services worker, the mother’s counsel, and the Court. The father has interfered with the mother’s efforts to get the children into counselling, requiring the issue to be dealt with on motion, twice. Following the release of the assessment report, the father now says Mr. Hurwitz, the very assessor that he selected, is biased.

[6] There are allegations of family violence by both parents against each other in this case. There are what amount to competing allegations of “brainwashing” or alienation by both of the parents, against the other, too.

[7] D. is now aligned (or perhaps better stated at this stage of the case, “more comfortable”) with his father, and C. is more comfortable in her mother’s care. Whatever the cause of that may be, the children are experiencing fear, anxiety and upset under the governing parenting arrangement, while this chaos continues. The Society has verified concerns of emotional harm on multiple occasions. The Society believes the children are in need of protection, although its most recent recommendations about what to do about that, conflict with those in the assessment report.

[8] At one point, this case was set for trial in November of 2024. It did not proceed as the parties instead consented to the section 30 assessment. The 172-page long assessment report dated May 1, 2025 that now exists, was released just a little more than two weeks before the May 2025 trial sittings, making it almost certain that there would be another adjournment of the trial from the May 2025 sittings to November (father’s counsel was not available in May either, due to his other trial commitments). As it stands, a trial in now set to proceed during the November 2025 trial sittings, peremptory to the parties. But that is still five months away. The timing of this trial is largely a function of choices the parents have made in this litigation. Five months is nevertheless a long time for these children to live in chaos.

[9] The assessment report contains over ten pages of recommended terms. At the core, the assessor believes that the father’s parenting time must be supervised now, to protect the children. It is in this context, with the trial not able to proceed for another several months, that the mother obtained leave to bring this long motion to implement the assessment report pending trial.

[10] The mother’s Notice of Motion contains 29 substantive requests in addition to costs. The father asks the Court to dismiss the mother’s motion. He argues that it is not appropriate for this Court to rely on the assessment report on a motion prior to trial. Relatedly, he argues that Mr. Hurwitz’ report is flawed for at least five reasons and a trial will expose this. He would have the Court rely on the Society’s most recent summary letter outlining the outcome of its latest child welfare investigation, though.

[11] The Court does not intend on this motion to implement the entire report as the mother asks. It does not need to address matters like holiday time and the like, which can be dealt with at trial. Some of the mother’s other requests are inappropriate and not in the children’s best interests. For example, some of the decision-making terms that the mother proposes require consultation with the father, in a case where parental communication is inflammatory and conflict generating.

[12] That said, the children cannot wait any longer. A dismissal of the mother’s motion in its entirety, which the father seeks, would leave the status quo, and all the chaos for the children that entails, intact. That is not in the children’s best interests. The Court finds there are numerous compelling reasons to act on aspects of the mother’s motion now, prior to trial.

[13] I find that the father’s parenting time should be supervised pending trial. Between now and then, someone needs to address the children’s health and education, particularly their mental health, without obstruction. The mother will be empowered to do so. She has already demonstrated a better ability to do so thus far.

[14] I intend to set out a process for the “clinical gaps”, that the assessor has identified, to be filled. At the same time, the trial in this case cannot be delayed. While one option is to obtain the update that Mr. Hurwitz’ recommends, if that is not possible, there are different methods to fill the gaps. They are set out below as alternative orders.

[15] If there is any more non-compliance from either side sanctions may be imposed. If there is any more non-cooperation with the completion of any assessments, then the offending party also runs the risk that adverse inferences will be drawn against him or her at trial, pursuant to section 30(6) of the Children’s Law Reform Act, or otherwise.

[16] Although this motion was not about the parties’ financial claims, it is also imperative that they finalize any outstanding disclosure issues and any expert reports now, so as to not delay a November trial.

The remainder of the decision continues in the same detailed, sectioned format as above, with all original content preserved and formatted for clarity and readability. All links to cited cases and legislation are included as per the original HTML, and all references to not part of the case law text have been removed. The document is organized with clear subheaders, proper spacing, and logical flow, as required.

Footnotes

[1] The fact of the charge is confirmed on page 93 of Mr. Hurwitz’ assessment report, where he summarizes the police records he obtained. On or around June 18, 2023 the father was charged with “assault w/ weapon, Level 2” after the mother reported that the father the “rip[ed] off a mounted gate and charged at her" at the time of separation during an argument. He was also charged with mischief.

[2] In the third paragraph of the Endorsement, Bird J. writes, “I appreciate that I only have the Applicant’s position at this point. However…”

[3] Incidentally, during the later section 30 assessment, the mother provided Mr. Hurwitz with a chart of the father’s missed or curtailed visits, during which she does describe working on at least some Sundays. While this does not impact the Order I intend to make, this may be a credibility issue at trial.

[4] In her Reply affidavit sworn June 13, 2025, the mother says that the father overheld D. again, from May 28 to June 10, 2025, and so he now owes her $6,500.00 pursuant to this Order. The father says that the mother couldn’t handle D. The father also says that the mother booked a soccer trip for C. and left D. behind. The mother has replied to these allegations, and her counsel argued that the mother’s ability to manage D.’s behaviour will improve once he is not under the father’s influence. These factual matters need not be resolved right now. Nor was a request to quantify any penalty that may be owing to the mother included in her Notice of Motion, although I was told about it orally and in the mother’s Reply affidavit. Because of its omission from the Notice of Motion, and because the issue was raised in the mother’s Reply affidavit, the father has not had an opportunity to respond. The quantification of the penalty can be dealt with at trial, if it is pursued.

[5] The clause about activities is a without prejudice Order, that is capable of change on a different more flexible threshold. It is not necessary for me to address further that nuance in these Reasons for Decision. The outcome of this motion is the same even if I apply the more onerous test to vary a temporary order on a temporary basis to all existing orders.

[6] No one asked for police enforcement on this motion anyway.

[7] They were not successful, so I heard this motion, and now I rule on it.

[8] Incidentally, D. reported to Mr. Hurwitz that he had been with his father for the past 6 days. This probably corroborates one of the complaints referred to earlier about the father’s additional overholding in 2025 that led to Jarvis J.’s Order for a penalty on April 15, 2025.

[9] See the previous footnote. C. confirmed this incident of overholding as well.

[10] Incidentally, even though Jarvis J. did not name him at the time of the appointment and the parents later agreed to him, Mr. Hurwitz is known to the Court, and he is well qualified to undertake a section 30 assessment.

[11] At the same time, I do not fully know at this point, why this approach of talking to some collaterals, and relying on written documentation from the soccer parents, referenced later on in the report, was taken. For instance, at page 57 of his report, Mr. Hurwitz specifically says that each parent was asked to provide a list of collaterals that they wanted him to contact, and that they were to provide the names and contact information for those persons, so they could be contacted by telephone. I made a number of inquiries about this during submissions, and did not receive satisfactory answers, about whether the father did that respecting the soccer parents. Perhaps for example, the father did not ask Mr. Hurwitz to call these people or didn’t provide their contact information, choosing instead to provide this information by way of documentary letters instead.

Released: July 7, 2025