MOTION HEARD: 2026-07-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katrina Lynn Turnbull, Applicant
AND
David James Fitzgerald Turnbull, Respondent
BEFORE: Associate Justice Kamal
COUNSEL: Sarah Kennedy, for the Applicant
Brad Yaeger, for the Respondent
MOTION ENDORSEMENT
This motion concerns the scope of materials that are to be provided to an assessor prior to the commencement of a Section 30 assessment.
The Respondent seeks an order pursuant to section 30(11) of the Children’s Law Reform Act (“CLRA”) permitting the Respondent to provide a copy of his affidavit to the parenting assessor, Dr. Horvath.
The Parenting Assessment
The original order was made by Associate Justice Fortier on February 20, 2026 at a case conference, on consent. The order did not mention anything about documents to be provided to the assessor. The order did say that the Respondent shall be responsible for the cost of the assessment, without prejudice to claim the costs upon final determination of the within MTC.
Dr. Horvath is on holiday for the month of August, so the substantive portion of her assessment is expected to begin in September and continue into the winter.
This motion to change on the June 2027 trial list.
Dr. Horvath advised that any documentation submitted to her must be submitted jointly through counsel.
Background
The parties separated in 2017.
The parties obtained a final order on consent from Justice Philips on December 2, 2019.
This is the second motion to change.
The parties have two children, who are 12 years old and 10 years old. The children reside with the parties on a week-about basis.
There is no secret that the parties’ coparenting relationship is conflictual, which has had a significant impact on both children.
One of the children has been diagnosed with ADHD and ODD.
This brief background tells me that the court needs to be cognizant of reducing the conflict in this family.
Positions of the Parties
The Respondent seeks to provide an affidavit that is 60 pages in length (double-spaced), with approximately 400 pages of exhibits; the exhibits include medical records, school records, CAS records, psychoeducational assessment reports, photographs, and 142 pages of emails (though to be clear, since there is unavoidable repetition across a number of the email exhibits, the actual number emails is closer to 100 pages).
The Respondent says that this affidavit will be his evidence in chief and trial affidavit.
The Respondent submits that this affidavit is intended to assist Dr. Horvath to navigate the voluminous materials. The Respondent also submits that this affidavit would be his evidence in chief at the Motion to Change hearing, therefore, it is not duplicated or unnecessary.
The Respondent submits that there would be no prejudice by presenting the affidavit. The Respondent goes further to submit that it is actually beneficial because his perspective is presented in writing.
The Respondent also submits that there is no evidence of financial prejudice to the Applicant, particularly because the Respondent is paying for the assessment.
He also submits that Dr. Horvath is an experienced professional who can be objective and critical.
The Applicant opposes this affidavit being provided to the assessor. The Applicant submits the following:
a. The Respondent is using the justice system as a forum for continuing to control and to bully her.
b. The Respondent has significant financial resources and is driving costs in the litigation.
c. The Applicant has limited financial resources.
d. The parties have not discussed scheduling a Trial Management Conference or a Settlement Conference yet and therefore, providing the assessor with a trial affidavit is inappropriate.
e. The affidavit is drafted specifically for the assessor, not the Court. The target audience for this affidavit is Dr. Horvath, and the point is to try to influence her findings rather than to allow her to do her job and conduct her own, independent assessment.
f. The Applicant cannot afford to serve a responding affidavit.
g. Dr. Horvath requested third-party materials and communications between the parties, not an affidavit.
- Dr. Horvath declined to decide the issue to preserve her impartiality, and indicated that if there was disagreement between counsel as to any document being submitted to her, then direction from the court would be necessary.
Analysis
Jurisdiction of an Associate Judge
Rule 42(8)4 grants me the authority to make an order to vary an order or an associate judge.
I note that Rule 42(8) does not grant the authority to an Associate Judge to make an order pursuant to section 30 of the Children’s Law Reform Act on a motion.
However, this is to vary an order of an Associate Judge that was made at a case conference. Rule 42(8)4 expressly me allows to consider a motion to vary an order of an Associate Judge.
Documents to be Provided to the Assessor
Section 30(11) expressly authorizes the court to give "such directions in respect of the assessment as the court considers appropriate."
I was provided two cases: Sears v. Coristine, 2021 ONSC 7576 and Joseph v. Molnar, 2022 ONSC 1155.
In Sears v. Coristine, 2021 ONSC 7576, the Wife sought an Order under s. 30 (11) CLRA dispensing with the Husband’s consent to release records to an assessor. In that case, the issue was whether the husband had signed the consent. It was uncontroverted that the Husband provided the assessor with all the consents requested by her. Ultimately, the Court was of the view that if the assessor believed those documents were relevant to her assessment, then the Husband was directed to sign such an authorization within 72 hours of a request being made. Failing which, the Court’s endorsement would be the assessor’s good and sufficient authority to communicate with and/or obtain the documents.
In Joseph v. Molnar, 2022 ONSC 1155, the Applicant brought a motion for an order compelling the Respondent to participate in a psychiatric risk assessment as referred by the court-appointed assessor. The Father brought a cross motion to: adjourn this motion pending the Mother providing her affidavit of documents pursuant to Rules 19(1) and Rule 1(8.1); and appoint someone to complete a risk assessment for both parties for physical or psychological behavior and/or aggression towards the Child.
Neither of the authorities are directly on point. However, they highlight the importance of providing documents that are necessary for the assessor to do their job.
I also note that in the case of Children’s Aid Society of Algoma v. M.L., 2019 ONCJ 398, the Court found that hundreds of pages of disputed or potentially inadmissible affidavit material need not be automatically provided without agreement or consultation with the assessor (see paras. 54 and 60). I appreciate that the case was in the context of a parenting capacity assessment in a child protection proceeding; however, the consideration in that case is appropriate. Only the information that the assessor believes is necessary should be provided.
As there is limited case law on what documents should be provided to a parenting assessor in a section 30 assessment, I offer the following guidance:
a. The documents should bear directly on the issues the assessor is required to consider.
b. Independent records (medical, school, CAS, police, prior assessments) are generally preferred over advocacy materials or disputed allegations.
c. The volume and nature of the documents should be proportionate. Dumping thousands of pages of affidavits or emails on an assessor is generally discouraged.
d. It is important to avoid "priming" or confirmation bias if an assessor receives extensive partisan material before conducting interviews.
e. There is a difference between providing documentation and an affidavit that is drafted or filtered by counsel.
f. The information must be necessary for the assessor to do their work.
g. Ultimately, every direction should promote a more reliable assessment that assists the court in determining the child's best interests.
I appreciate that counsel for the Respondent submitted that it is obvious that both parties would be trying to persuade the assessor to agree with their perspective. However, as the assessor has a neutral and independent role to assist the court, it is also important to recognize the difference between the assessor receiving information from their clinic interviews with the parties and receiving an affidavit that has been prepared with the assistance of counsel.
Having considered the principles, in my view it is not appropriate to provide the affidavit to Dr. Horvath for the following reasons:
a. While the exhibits to the affidavit may bear directly on the issues Dr. Horvath is considering, the content of the affidavit is not necessary.
b. This affidavit was drafted specifically for the assessor. While it may be used at trial as evidence in chief, that is not the purpose. This matter is not close to a trial.
c. This is not a situation where affidavits that already exist are being provided to the assessor. This affidavit was drafted with the assessor in mind as the targeted reader.
d. The affidavit is an advocacy document and independent records (medical, school, CAS, police, prior assessments) are generally preferred.
e. The affidavit has the potential of impacting the assessor’s impressions of the parties. While I completely appreciate that Dr. Horvath is a well-respected professional and this comment does not reflect personally on Dr. Horvath, an affidavit drafted for the specific audience of an assessor is not appropriate.
Accordingly, the motion is dismissed.
However, this endorsement is not intended to limit Dr. Horvath’s request for documents. If Dr. Horvath requests the affidavit or any other documents, they may be provided. Ultimately, I am of the view that if Dr. Horvath believes it is relevant to her assessment, then the parties are hereby directed to provide the affidavit within 72 hours of a request being made.
The parties are encouraged to resolve the issue of costs. If the parties are unable to agree on costs, the party seeking costs may file costs submissions of no more than 3 pages plus a costs outline and any offers to settle within 10 days of the release of this decision, and the other party may file responding costs submissions on the same terms within a further 10 days. A Reply, if any, is limited to one page, to be filed within a further 5 days. All submissions shall be sent to my attention to the Office of the Associate Judges at ottawafamilyassociatejudges@ontario.ca.
Associate Justice Kamal
DATE: July 21, 2026