Martha McCarthy

During a family law trial, the respondent sought to qualify a social worker as an expert in family therapy and parental alienation.

The court refused to qualify the proposed expert, finding she failed to meet the threshold requirements of admissibility under the Mohan framework and lacked the requisite independence and impartiality required by the White Burgess test.

The court noted the proposed expert viewed herself as an advocate for the children, failed to comply with the Family Law Rules regarding expert duties, and demonstrated bias in her report.

However, the court admitted video interviews of the children conducted by the proposed expert, subject to later submissions on their weight.

In a high‑conflict custody dispute, the father brought an emergency motion seeking a declaration that the Superior Court custody trial should proceed notwithstanding a child protection application commenced in the Ontario Court of Justice by a child through counsel.

The mother cross‑moved seeking adjournment, involvement of the Office of the Children’s Lawyer, and consideration of the children’s wishes.

The court found the protection proceeding appeared to be a tactical attempt to delay the scheduled custody trial and concluded the best interests of the children required prompt resolution of the family dispute.

The court held the protection application did not automatically stay the custody trial and declined to adjourn the trial.

However, the court declined to stay the protection proceeding itself, leaving that determination to the Ontario Court of Justice.

The parties separated following a trip to Jamaica in December 2010, during which the applicant alleged the respondent attempted to kill her by slashing her throat, while the respondent alleged the applicant attacked him with a knife.

The respondent was acquitted in a Jamaican criminal trial.

In this family law trial, the court could not determine on a balance of probabilities who attacked whom.

Given the extreme conflict, the court awarded sole custody to the applicant but ordered increasing, unsupervised access for the respondent, culminating in a week-about shared parenting schedule.

The court also addressed child support, found the applicant in contempt for denying telephone access, and ruled that the applicant's family cottage qualified as a matrimonial home.

Following a successful family law motion granting injunctive relief to prevent dissipation of assets, the moving party sought costs on a full recovery basis.

The court considered Rule 24 of the Family Law Rules and determined that the responding party had acted in bad faith by failing to provide proper financial disclosure, terminating support, and attempting to deal with jointly owned assets while international proceedings were ongoing.

Given the complexity of the litigation, the high financial stakes, and the conduct of the responding party, the court held that full indemnity costs were warranted.

The court ordered payment of substantial legal fees and disbursements to counsel for the moving party within 30 days.

The father sought leave to extend the time to file a notice of appeal from an Ontario Court of Justice order granting the children’s grandmother temporary access.

The motion arose after the children’s mother removed the children from Ontario to the Bahamas shortly after the access order and the father claimed he was unable to comply due to the parties’ separation and the mother’s unilateral actions.

The court reviewed the governing factors for extending time to appeal, including bona fide intention to appeal, explanation for delay, prejudice, merits, and the justice of the case.

The court found the father’s explanation for the delay not credible and concluded the evidence suggested he facilitated the children’s removal from the jurisdiction and obstructed access.

Nevertheless, in light of the children’s interests and the broader administration of justice, leave to appeal was granted subject to strict conditions requiring the children’s presence in Ontario during the appeal process and staying enforcement of the underlying orders pending appeal.