Conceicao v. Abraham, 2019 ONCJ 295

Ontario Court of Justice CITATION: Conceicao v. Abraham , 2019 ONCJ 295 DATE: May 7, 2019 COURT FILE: 233/10 7755 Hurontario Street Brampton, Ontario Endorsement Justice L.S. Parent Date Applicant: Karen Conceicao Present May 7, 2019 Counsel: S. Balasunderam Present Respondent: Iverson Abraham Present Counsel: Present Proceeding before the Court [ 1 ] On April 2, 2019, a motion, brought on behalf of Ms. Conceicao, seeking an order for the appointment of an assessor and costs of the assessment pursuant to

section 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 . (hereinafter “ CLRA ” ) was heard. [ 2 ] This is my decision following the hearing of submissions made on behalf of both parties.

Background [ 3 ] The parties are the parents of one child, Jaeda. [ 4 ] Jaeda is currently 9 years of age. [ 5 ] It is undisputed between the parties that Jaeda has special needs, namely, Attention Deficit Disorder (hereinafter " ADHD ”) and Adjustment Disorder (hereinafter " AD ”), diagnosed by a psychiatrist at the William Osler Health Center on March 7, 2018 and an overactive bladder requiring medication, which was diagnosed by a urologist in 2015. [ 6 ] The proceedings before the Court commenced by an Application filed by Ms. Conceicao on February 8, 2010.

She seeks an order for sole custody, child support and other relief. [ 7 ] In his Answer, filed on March 12, 2010, Mr. Abraham opposes the relief sought by Ms. Conceicao. He seeks an order for sole custody or in the alternative, joint custody, an order for unsupervised access and other relief. [ 8 ] The existing temporary order is dated June 26, 2017. This order grants sole custody and primary care of Jaeda to Ms. Conceicao The order further provides that Jaeda is to be with Mr.

Abraham every second weekend from Friday after school to Monday morning, which may be extended by twenty-four hours in the event of a school holiday, in addition to telephone access on alternate Saturdays. [ 9 ] The Office of the Children’s Lawyer (hereinafter “ OCL”), has filed two reports, pursuant to

section 112 of the Courts of Justice Act , R.S.O. 1990, c. C.43 . (hereinafter “ CJA ” ), in this matter. OCL involvement was ordered pursuant to the orders of Dunn, J. dated May 16, 2013 and June 26, 2017. Both orders were granted on consent of the parties. [ 10 ] The first report is dated March 7, 2014. Ms. Melissa Saumur, the Clinical Investigator who authored the report, made the following recommendations: Custody:

1. It is recommended that Ms. Conceicao and Mr. Abraham enter into a parallel arrangement for Jaeda. It is recommended that Jaeda go one week in each home from Monday to Monday with no mid-week visit to the other party. 2. It is further recommended that Ms. Conceicao make all decisions regarding Jaeda’s health and dental needs and that Mr. Abraham make all decisions regarding Jaeda’s schooling needs. 3. It is further recommended that Jaeda remain in the catholic school system. It is recommended that Jaeda finish her school year at X catholic school. 4.

It is recommended that should Jaeda require immediate or short-term medical care that either parent will ensure Jaeda received the care regardless of the week or the parent’s stated responsibilities. Ex.: flu 5. It is recommended that Mr. Abraham and Ms. Conceicao register with Our Family Wizard and use that tool to ensure off all (sic) Jaeda’s information is up to date and accessible to all parties including Jaeda’s health care, etc.

Subsidized memberships are available. (http://www. ourfamilywizard.com/ofw/) It is further recommended that all information regarding Jaeda be provided to the other parent within 24 hours either through email, text message or family wizard. 6. It is recommended that both parties will notify one another immediately if Jaeda requires immediate emergency care or presents to the hospital for any reason. Access: 7. It is recommended that two phone calls be permitted between the child and the respective parent while in the care of the other.

It is further recommended that the parent will make the child available every Wednesday and Friday from 6:30 until 7 PM. It is recommended that it be the parent’s responsibility to call the home where the child is residing for that week. It is further recommended that the parent calling the child will be the parent to terminate the phone call at 7 PM or prior if they so choose. 8. It is recommended that the child’s identifying information such as a birth certificate, health card, passports, etc. are on Jaeda’s person while she goes between both homes.

It is recommended that should this be problematic the original documentation will be given to Ms. Conceicao’s lawyer and a photocopy of each document will be provided to both parties. 9. When possible and necessary, it is recommended that exchanges occur at school to ensure a minimal exposure of adult conflict. 10. It is further recommended that when school exchanges are not possible, police station exchanges occur as a last resort. Additional Recommendations: 11. It is recommended that Ms. Conceicao continue with her on-going counselling. 12.

It is recommended that Jaeda receive therapy preferably in the form of play therapy. 13. It is further recommended that the party, who calls a community professional to

schedule an appointment for Jaeda, do so when Jaeda is scheduled to be with them. 14. It is further recommended that if new allegations are made to the Children’s Aid Society (CAS) or police that a written letter by either CAS or police would be the only way to prevent, change or modify the access schedule. 15. It is further recommended that the parent consent to the offer made by the Children’s Aid Society to refer the family to utilize the Alternative Dispute Resolutions program. 16. It is recommended that HOLIDAYS be shared equally. 17.

It is further recommended that CAS be provided a copy of the final report. [ 11 ] The second report is dated October 26, 2018. Mr. Keith Adamson, the Clinical Investigator who authored the report, made the following recommendations: Custody Recommendation 1. It is recommended that Ms. Conceicao and Mr. Abraham enter into a parallel arrangement with Jaeda. Major decision-making rights will be divided between the parties, with each parent having sole, final decision-making authority in specified areas. It is further recommended that Ms.

Conceicao make all decisions with respect to health and dental needs and that Mr. Abraham will make all decisions regarding Jaeda’s schooling. Mr. Abraham will be the emergency contact in the school. Any health matters that take place in the school, Mr. Abraham will be responsible for making the decision. Any health matters outside of school Ms. Conceicao will have decision making authority. 2. With respect to extra-curricular activities each parent will have a maximum of one extra-curricular activity in which to enroll the child each year.

This activity will have to be carried out within both households in order to ensure continuity for the child. Anything more than that would have to occur solely in the week that the respective parent has access. 3. It is further recommended that Jaeda remain in /her current school and if any changes need to be made with respect to school location, it can happen by September 2019. This will give Jaeda an opportunity to maintain some stability while her family situation shifts over the course of the next year. 4.

It is recommended that should Jaeda require immediate medical attention or short-term medical care that either parent will ensure

Jaeda receives the care regardless of the week or the parent stated responsibilities. 5. It is recommended that both parents will notify one another immediately if Jaeda requires immediate emergency care or presents to the hospital for any reason. 6. The parties shall communicate through family wizard twice a week, once on Tuesday and Friday except in the event of an emergency in which case the communication will be as needed. All communication between the parents shall be child focused, cordial, brief clear and to the point of Jaeda.

The parties shall remain courteous and polite in communications with each other at all times. 7. Both parents to receive directly from the school copies of report cards and any other documents. It is each parent’s responsibility to stay up to date on any relevant educational matters. Access recommendation 1. It is recommended that Jaeda start to gradually increase her access to her father over the next four months until that access is one week with her father and one week with her mother starting March 1 st , 2019. One possibility is to extend Jaeda’s access to Mr.

Abraham from Friday after school to Wednesday drop off at school for the months of November and December 2018 and then extend by one day in January 2019 then another day in February 2019. 2. It is recommended that two phone calls be permitted between the child and the respective parent while in the care of the other parent. It is further recommended that the parent will make the child available every Wednesday and Friday from 6:30 until 7 pm. It is recommended that it be the parent’s responsibility to call the home where the child is residing for the week.

It is further recommended that the parent calling the child will be the parent to terminate the phone call at 7pm or prior if they so choose. 3. It is recommended that the child’s identifying information such as birth certificate, health record, passports etc., are on Jaeda’s person while she goes between both homes. 4. It is desirable for exchanges to occur at the parent’s residential homes. If this is not possible then exchanges can occur at school to ensure minimal exposure to parental conflict. 5. March break to be split equally between both parents. 6.

Each parent will have two non-consecutive weeks with Jaeda in the summer. Mr. Abraham to have first choice on even years, Ms. Conceicao on odd years and this should be communicated to the other parent by April 15 th of each year. 7. Jaeda to spend Mother’s day and/or Father’s day with the respective parent to whom the day acknowledges. 8. The celebration of Jaeda’s birthday to be alternated each year between the parents. 9. Consent and a copy of itinerary for vacations abroad to be provided to the other parent as required. Additional recommendations: 10. It is recommended that Ms. Conceicao and Mr.

Abraham get counselling with respect to co-parenting after separation. 11. It is recommended that Jaeda continue with therapy over the next year to support her transition as well as support for coping with past parental conflict. 12. It is further recommended that the Children’s Aid Society be provided a copy of the final OCL report. 13. It is further recommended that if new allegations are made to the Children’s Aid Society or the police that a written letter (by either CAS or the police) would be the only way to prevent, change, or modify the access schedule. 14.

It is also recommended that the parents engage in the Children’s Aid Society’s Alternate dispute resolutions program or engage a parenting coordinator in the event that a disagreement should occur with respect to any matter concerning Jaeda. [ 12 ] Ms. Conceicao has filed a Dispute to the October 26, 2018 OCL report. No other disputes have been filed. The recommendations of the OCL reports have not been implemented. Position of Ms. Conceicao [ 13 ] Ms. Conceicao has filed a Notice of Motion, dated February 18, 2019 seeking an order for an assessment to be conducted pursuant to

section 30 of the CLRA and that the costs of this assessment, if ordered, be shared equally between herself and Mr. Abraham [ 14 ] In support of her request, Ms. Conceicao has filed the following documents:

a) Her Notice of Motion at Tab 2, Volume 9 of the Continuing Record;

b) Her affidavit in support sworn February 18, 2019 and filed at Tab 3, Volume 9 of the Continuing Record;

c) Her affidavit in reply sworn March 24, 2019 and filed at Tab 5, Volume 9 of the Continuing Record; and

d) A Book of Authorities. [ 15 ] Counsel on behalf of Ms. Conceicao submits that an assessment is required in this matter as the investigation undertaken by Mr.

Adamson, which lead to his report dated March 26, 2018, was completed in the absence of any communication with the medical professional who diagnosed Jaeda with ADHD and AD . [ 16 ] Counsel submits that the evidence of both parties establishes that Mr. Abraham has an absence or at best, a limited understanding of Jaeda’s special needs given the diagnosed medical conditions. [ 17 ] Counsel on behalf of Ms. Conceicao submits that Jaeda’s special needs raise clinical issues which were not addressed in the OCL report. [ 18 ] Counsel submits therefore that Jaeda’s medical needs and the evidence of each party’s understanding of these needs, require a

section 30 assessment as only such a report will assist the Court, and the parties, in identifying Jaeda’s needs and the ability and willingness of each party to satisfy these needs. [ 19 ] Counsel submits a

section 30 assessment would also:

a) Give Jaeda a voice in these proceedings;

b) Provide information to the parents so as to enable them to change their behaviour; and

c) Be of great assistance to the Court to determine Jaeda’s best interests. [ 20 ] Counsel submits that each party should equally contribute to the cost of the assessment, if granted. In the alternative, counsel submits that Ms. Conceicao is prepared to pay the full costs. Position of Mr. Abraham [ 21 ] Mr. Abraham opposes the order sought by Ms. Conceicao. In support of his position, he has filed an affidavit in response sworn March 7, 2019 which is located at Tab 4, Volume 9 of the Continuing Record. Mr. Abraham has also provided some case law. [ 22 ] Mr.

Abraham submits that the OCL has completed and filed a comprehensive report. Mr. Abraham submits that should an assessment be ordered, Jaeda would be required to speak with another clinician, which he submits in not in his child’s best interests. [ 23 ] Mr. Abraham submits that the behavioural issues of Jaeda, detailed by Ms. Conceicao in her materials, do not exist when his child is in his care. He submits that another report is not required in this matter. [ 24 ] Mr. Abraham submits that if an assessment is ordered, Ms. Conceicao should pay the full costs as he does not have the funds to contribute.

Analysis [ 25 ] The relevant subsections of

section 30 of the CLRA are as follows: The court before which an application is brought in respect of custody of or access 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. … 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. … 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.

… Fees and expenses

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). Idem, 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. Idem, 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 undersubsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. [26] There is no dispute between the parties that this is a high conflict custody and access case. [27] The parties have been involved in litigation since Jaeda was six months old. Both OCL reports and each party’s evidencereference parental conflict, mistrust and limited communication between them. Both OCL reports highlight the impact of how Ms.Conceicao and Mr.

Abraham’s conflictual relationship negatively impacts Jaeda. [28] Counsel for Ms. Conceicao has cited the decision of Kitely, J. in Glick v. Cale, 2013 ONSC 893 in support of theposition that it is appropriate for the Court to order a

section 30 assessment in cases where there are clinical issues and conflict betweenthe parties. [29] Counsel further references Laskin, J.A.’s decision in Ursic v. Ursic, CA to support the submission onbehalf of Ms. Conceicao that assessments should be ordered in cases of high conflict involving young children. [30] The caselaw supports the propositions that assessments are not to be used as a fishing expedition and should not be orderedroutinely. (See: Mantesso v. Mantesso (1991), 4 R.F.L. 128 (Gen.Div.); Baillie v. Middleton 2012 CarswellOnt 8014 (Ont.

S.C.J.). [31] The onus of satisfying the Court that an assessment is needed in this matter is on Ms. Conceicao as she is the requesting party. [32] I find that I must consider the request for an assessment by Ms. Conceicao, not solely within the context of submissions madeon her behalf that there are clinical issues within a high conflict case, but also within the context of two prior OCL reports being filed andMs. Conceicao’s Dispute to the recent OCL report.

This context is essential as an assessment should not be ordered merely to offer asecond opportunity for her to obtain a report favourable to her position. [33] Counsel on behalf of Ms. Conceicao has submitted that the presence of clinical issues support an order for an assessment.However, case law does exist to support the proposition that assessments can also be ordered in high conflict cases in the absence of clinical issues (See: Brisson v. Brisson, (ON SC), 2003 45 R.F.L. 5th 253 SC.) [34] In the absence of clinical issues, the Court must be satisfied that: (

a) A genuine issue exists between the parties for resolution of which an assessor’s expertise would assist the Court in an area wherethe Court is ill-equipped to act without this assistance; and (

b) The benefit of the assistance an assessment provides must justify the delay in resolution of the matter, the intrusion on the partiesand the child(ren) and the expense. (See: Haggerty v. Haggerty, 2007 ONCJ 279 (Pugsley J.)) [35] Mr. Abraham has submitted that to have Jaeda participate in another assessment would not be in his child’s best interests. Hehas also submitted that he does not have the funds to contribute to an assessment, if one is ordered. [36] The submissions made by Mr. Abraham must also be considered by the Court when determining whether to order anassessment.

Neither party had disputed that assessments, by their very nature, are intrusive, are not a scientific inquiry, at times rely onhearsay, and are expensive and time consuming. The Courts have also recognized these factors (See: Glance v. Glance, 2000CarswellOnt 3169 (Ont.

S.C.J). [37] Given these considerations, the evidence must support the determination that an assessment is in a child’s best interest, isrequired to assist the Court in its determination as to which order is in a child’s best interest and the need for this assistance outweighsthe detrimental factors of delay, intrusiveness and costs. [38] Counsel on behalf of Ms. Conceicao submits that given that Mr. Adamson did not speak with the psychiatrist who diagnosedJaeda, the OCL report is incomplete on the needs of Jaeda in light of the diagnosis.

Counsel submits therefore that an assessment isessential in order to determine each parent’s willingness and ability to address Jaeda’s needs which is critical in determining whichparenting order is in Jaeda’s best interests. [39] I have reviewed the March 26, 2018 OCL report. [40] At pages 13 and 14 of his report, Mr. Adamson writes:

Jaeda has stated that she has Hyperactive attention deficit disorder. She added that she feels good about her diagnosis and she is getting better marks in school. She told this investigator that because of this condition she gets very mad at her mom. In March 2018, Jaeda was diagnosed with Hyperactive Attention Deficit disorder with a secondary diagnosis of stress induced post separation issues. She has been on medication for the condition. Though Jaeda did not mention problems of incontinence in her interview, it is reported by medical collaterals that at 7 years of age, Jaeda developed urinary incontinence.

Jaeda was seen by a[n] urologist and given the appropriate medication. [ 41 ] Mr. Adamson continues, at pages 14 and 15 of his report, by stating as follows: … In Jaeda’s mind she has already lost her father to some extent, and it would be intolerable to tell her mother about her true feelings with respect to her mother’s behaviour. This verbalization would mean risking her mother’s love as well. It may be plausibly more acceptable for Jaeda to show her frustration with her mother through behavioural outburst. She was equally, upset with her father for not being more present in her life.

Some of the rejection of her father may also come from multiple years of Police and Children’s Aid investigations from individuals questioning her about her father’s behaviour towards her as well as her father’s intentions. It is also reasonable to suspect that her exposure to prolonged parental conflict may have precipitated and aggravated her on-going medical and psychological issues, and this investigator suspects that her urinary incontinence and potentially other symptoms may be a sign of regressive behavio[u]r connected to post separation parental conflict. [ 42 ] The evidence is clear that Mr.

Adamson was aware of the ADHD and AD diagnoses. Furthermore, Mr. Adamson was aware of each party’s position regarding Jaeda’s needs. [ 43 ] Mr. Adamson notes at pages 5, 7 and 8 of his report the following: Ms. Conceicao reported that Jaeda sometimes has challenging behaviours at school and at her home. She described these as “meltdowns” and they usually occurred post visits with Mr. Abraham. For example, Jaeda once cried for two hours straight for no apparent reason; she would throw up, and then at times become aggressive with her step-brother or non-compliant with parental instruction.

Most times meltdowns take the form of some or all of these behaviours. Ms. Conceicao has been concerned for Jaeda and has sought help from the Peel Children’s Centre between September 2016 and March 2017. Personal and professional collaterals stated that Ms. Conceicao was sometimes unsure of how to respond to Jaeda in a consistently warm and positive manner, as many of Jaeda’s bids for attention and connection present in a negative way such as aggression, non-compliance and self harm. Ms.

Conceicao stated that she continues to work on her approach to Jaeda and has consistently applied the techniques learned within the sessions with the therapist. … Mr. Abraham is somewhat surprised at the behavioural issues from which Jaeda is suffering. Mr. Abraham stated that he has not seen any “meltdowns” or emotional outbursts, or behavioural issues when Jaeda is in his care. Mr. Abraham added that Jaeda does not behave this way when she stays with him. Mr.

Abraham’s perspective is supported by accounts by Jaeda who reports that her father often makes comments about why Jaeda is on so much medication or comments about not understanding her mental health diagnosis of attention deficit disorder. He did report however, that at times, Jaeda did lack focus, as he noticed that she would be easily distracted when asked to perform certain tasks. He also reported that he has had to speak to Jaeda about lying about events that happen between her and her step-siblings.

He reports that he has complied with carrying through on medication administration when Jaeda is in his care. [ 44 ] In his

summary, Mr. Adamson states at pages 20 and 21 of his report as follows: Mr. Abraham and Ms. Conceicao both have important roles to play in Jaeda’s life. Both parties and the child report that parental conflict and tension pervade the parental relationship, which impact the child’s needs directly. Both parents need to recognize that they each take accountability for their individual behaviours and need to recognize the impact that their behaviour has on Jaeda as well as the relationship with the other parent.

This investigator gets the sense that both parents maintain a defensive posture against each other that leaves Jaeda in a sometimes unpredictable and anxiety provoking environment. It would be important that the parents adopt a more business-like approach to their relationship and this approach will work well with respect to Jaeda’s current mental health challenges as well as her post separation adjustment.

There has been a poor history of cooperation between the parents, to the point where they cannot resolve issues as simple as replacing a pair of broken glasses for the child, where the child must have one item of everything (for example a pair of prescription glasses) in each home so that the parent’s don’t have to deal with each other, but this makes life for the child very confusing, fragmented and chaotic.

She is constantly aware of the invisible boundaries between her two lives and knows that she cannot carry items cross boundaries at risk of offending either one of her parents or inciting parental conflict any further. [ 45 ] A review of the OCL report supports a determination that Mr. Adamson did put his mind to the issue of Jaeda’s ADHD and AD diagnoses. His report is clear that he was aware of the diagnoses, commented on their impact on Jaeda and how each parent addresses Jaeda’s behaviour while in a caregiving role. [ 46 ] The essence of the submissions on behalf of Ms.

Conceicao is that this clinical issue, namely the diagnoses, was not addressed in the OCL report. I do not find that this statement is supported by the report. [ 47 ] Counsel on behalf of Ms. Conceicao submits that given the absence of contact with the psychiatrist during the OCL investigation, a

section 30 assessment is required so as to assist the Court in determining each parent’s ability to address Jaeda’s needs. [ 48 ] I also do not accept this position as both parties are able to provide the Court with evidence as to their child’s needs and how they are each, as well as the other, capable of addressing these needs. [ 49 ] Ms. Conceicao states at paragraph 63 of her affidavit sworn February 18, 2019 the following “ Even after all those meetings, Mr. Adamson was only able to provide suspicions and guesswork and he was unable to provide the Court with definitive findings”.

[ 50 ] It is clear that Ms. Conceicao does not support the recommendations of the OCL report. Her position however does not, in my view, support that an order should be made for a

section 30 CLRA assessment. [ 51 ] Ms. Conceicao has provided three curricula vit ae of assessors she proposes as being suitable to conduct the assessment should the Court grant her motion. [ 52 ] I note that all of the individuals proposed by Ms. Conceicao are registered social workers (RSW) with either a Bachelor or Masters in Social Work. The OCL reports were completed by Clinical Investigators whose credentials also include the designation of RSW and/or MSW, PhD. The individuals proposed by Ms. Conceicao are also Clinical Investigators for the OCL. [ 53 ] I further note that the evidence of Ms.

Conceicao does not include that any of the proposed assessors have an expertise or any specific training in the area of ADHD and/or AD . [ 54 ] Ms. Conceicao has not provided any evidence to indicate that any of her proposed assessors have consented to conducting the assessment, as required by section 30(4) of the CLRA . [ 55 ] Ms. Conceicao has not provided any evidence to indicate the time required by the assessors to complete the assessment, if ordered. [ 56 ] Ms. Conceicao indicates at paragraph 53 of her affidavit sworn February 18, 2019 that “ My understanding is a private assessor as per

section 30 of the CLRA would cost somewhere between $8,000.00 and $10,000.00. ” Ms. Conceicao does not provide any evidence to support this statement and in particular, what the estimate of costs would be for an assessment in this particular case. [ 57 ] This evidence does lead me to conclude that Ms. Conceicao’s true objective is to hopefully obtain an assessment which supports her position before the Court on the issues of custody and access. [ 58 ] After a review of the evidence, I make the following determinations:

a) The OCL reports filed in these proceedings recognize the emotional, psychological and medical needs of Jaeda within the context of the longstanding high conflict custody battle between Ms. Conceicao and Mr. Abraham;

b) The absence of direct communication with one of Jaeda’s medical practitioners does not raise a clinical issue which supports a third assessment;

c) Although recommendations have been made by the OCL reports, these reports are only part of the evidence the Court must consider in determining which order is in Jaeda’s best interest;

d) The authors of the OCL reports are subject to cross-examination at trial and/or questioning by either party;

e) The litigation between the parties began nine years ago therefore any delay in moving the matter towards a trial, in the absence of a settlement, for a final resolution is a factor;

f) The conflict between the parties has not lessened over the nine year period and is described by the parties and third parties as being a high conflict situation;

g) There have been two orders seeking the involvement of the OCL. Both orders were requested and granted on the consent of the parties;

h) The request for the re-involvement of the OCL in 2017 which lead to the filing of the March 26 th , 2018 report was made within the knowledge of the parties that Jaeda suffered from an overactive bladder;

i) Given Jaeda’s needs and this high conflict longstanding case, I am concerned of the impact on Jaeda of undergoing a third assessment especially in light of an absence of evidence to address the issues of delay; and

j) The evidence and absence of evidence of Ms. Conceicao raises concerns that her request for a

section 30 assessment is influenced by her desire to obtain a report in support of her position before the court. [ 59 ] For the above reasons, the request for a

section 30 CLRA assessment is denied . Given this determination, an order addressing the cost of the assessment is not required. [ 60 ] Counsel for Ms. Conceicao and Mr. Abraham are encouraged to discuss the issue of costs for this motion. [ 61 ] I further find that Mr. Abraham was the more successful party given my decision to deny Ms. Conceicao’s motion. [ 62 ] Failing agreement on the issue of costs, I will receive written submissions, as follows: (

a) On behalf of Mr. Abraham, not to exceed two pages double-spaced plus attached bills of costs and any offers to settle the motion by May 17, 2019; (

b) On behalf of Ms. Conceicao not to exceed two pages double-spaced plus attached bills of costs and any offers to settle the motion by May 31 2019; and (

c) Any reply on behalf of Mr. Abraham, not to exceed one page double-spaced by June 7, 2019. [ 63 ] Costs submissions should be exchanged between Mr. Abraham and counsel for Ms. Conceicao and delivered to my assistant.

[ 64 ] The matter will remain as scheduled for a case conference on June 10 th , 2019 at 10:00 a.m. in Courtroom #201 in accordance with my endorsement dated April 2 nd , 2019. ____________________ Justice L.S. Parent